Environmental Regulation and the Constitution (Update 1)

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In recent years, three issues have dominated the constitutional side of environmental law. The first issue involves the ability of administrative agencies to obtain access to private property and business records for purposes of inspection. These fourth amendment problems are not, however, distinctive to the environmental area, but are typical of those involving administrative search in general.

The second issue involves federalism. Since the doctrine of national league of cities v. usery (1976) met its demise in garcia v. san antonio metropolitan transit authority (1985), Congress has faced no constitutional obstacles to environmental regulation. Where state regulation is concerned, however, commerce clause and preemption problems remain recurring sources of litigation. State environmental regulations often burden interstate businesses and may sometimes be a pretext for protectionism. Although some state regulatory measures have fallen afoul of the dormant commerce clause, courts on the whole have been sympathetic to environmental measures and willing to give them the benefit of the doubt in commerce clause cases. The results in preemption cases are much less predictable. As the federal regulatory presence has grown, the difficulties of coordinating local regulations with federal rules have become more widespread. As a result, state regulations are not infrequently held to be preempted by federal law.

The third major constitutional issue involves government regulation of private lands. Under some circumstances, a regulation that "goes too far" can be an unconstitutional taking of property. Efforts at enviromental preservation can severely restrict the use of property, therby raising taking problems.

One of the best-known cases is a Wisconsin Supreme Court decision, Just v. Marinette County (1972). Just involved a Wisconsin statute that allowed only limited uses of wetlands, such as harvesting of wild crops, forestry, hunting, and fishing. Other uses required a special permit. Essentially, this law required special permission before any commercial or residential use could be made of the property. The Wisconsin Supreme Court upheld the statute, despite the severe restriction on land use, because of the strong public interest in preserving wetlands. Other state courts have split on the constitutionality of similar statutes.

The Supreme Court has considered several environmental takings cases. In Keystone Bituminous Coal Association v. DeBenedictus (1987) the Court upheld a Pennsylvania statute that required underground coal miners to provide support for surface structures. A similar Pennsylvania statute had been held unconstitutional in a wellknown opinion by Justice oliver wendell holmes, jr. ,, but the current statute was found to be unobjectionable because it required only a small fraction of the total coal deposits to be left in the ground. on the other hand, inNollan v. California Coastal Commission (1987) the Court took a much different approach. Nollan involved a couple who wanted to build a larger beach house. As a condition for receiving a permit, the California Coastal Commission required them to allow the public to walk along the beach. Justice antonin scalia found a taking because there was an insufficient nexus between the state's goal of preserving the public's right to view the ocean and the requirement that the public be allowed to walk along the beach.

As these two decisions indicate, the outcomes in taking cases are often unpredictable. This uncertainty is a particular problem for environmental regulators and land-use planners, for a mistake can result in an award of damages as well as an injunction against the taking.

With these exceptions, constitutional issues have not loomed large in federal environmental law. By and large, like most regulations of economic activities, environmental statutes have received only minimal judicial scrutiny. As a result, the major issues in environmental law have involved statutory interpretation rather than constitutional disputes.

Daniel A. Farber


Michelman, Frank 1988 Takings, 1987. Columbia Law Review 88:1600–1629.

Rose, Carol 1984 Mahon Reconsidered: Why the Takings Issue Is Still a Muddle. Southern California Law Review 57: 561–599.

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Environmental Regulation and the Constitution (Update 1)

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Environmental Regulation and the Constitution (Update 1)