Judicial Federalism and the Future of Federal Environmental Regulation

94 Pages Posted: 26 Apr 2004

See all articles by Jonathan H. Adler

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Multiple version iconThere are 2 versions of this paper

Date Written: April 2004

Abstract

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: 1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. 2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. 3) The thrust of the federalism cases makes it likely that the Supreme Court will revisit the constitutional limitations on the Spending Clause, and this could have a substantial impact on federal environmental regulation, as some federal environmental provisions exceed even the highly deferential Spending Clause standard outlined in South Dakota v. Dole. 4) Judicially enforced limitations on federal regulatory authority do not necessarily translate into limitations on environmental protection. The federal government will retain substantial - although not unlimited - authority to advance environmental protection. Where federal authority is constrained, state and local governments and non-governmental entities will retain their ability to address many environmental concerns.

JEL Classification: K11, K23, K32

Suggested Citation

Adler, Jonathan H., Judicial Federalism and the Future of Federal Environmental Regulation (April 2004). Case Legal Studies Research Paper No. 04-6, Available at SSRN: https://ssrn.com/abstract=535663 or http://dx.doi.org/10.2139/ssrn.535663

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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