Since the passage of our nation’s landmark environmental statutes in the 1960s and 1970s, environmental attorneys have been at the forefront of mapping the limits of the federal government’s constitutional authority. Even today, we need look no further than the fervor surrounding the ongoing Clean Water Rule litigation to appreciate the role that environmental law plays in defining the scope of federal powers. In the past, those seeking additional environmental protections generally have sought to give the federal government expansive power in an effort to unify environmental protections and, in doing so, prevent state and local governments from being drawn into perceived “races to the bottom” in which local governments lower protections to attract development. Inversely, many promoting development have sought to empower state and local governments that seek to reduce regulatory hurdles.
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