RL30670: Constitutional Constraints on Congress'
Ability to Protect the Environment

Robert Meltz

Legislative Attorney American Law Division

September 8, 2000

Contents

Federal efforts to protect the environment must hew to the same constitutional strictures as any other federal actions. In the past decade, however, the Supreme Court has invigorated several of these strictures in ways that present new challenges to congressional drafters of environmental statutes.

Herewith, we offer a checklist of these newly important constitutional bounds,1 with discussion of their import for federal environmental law. (The reader should have little difficulty seeing their significance for many wow-environmental federal programs as well.) In each case, the Supreme Court has redrawn a fundamental boundary line - most often, the line between federal and state power (Commerce Clause, Tenth Amendment, Eleventh Amendment), but also that between the judiciary and the political branches (standing to sue), and between the federal government and the property owner (Takings Clause). Or in the case of the line between Congress and the executive branch (nondelegation doctrine), the Court may soon do so. Two of these constitutional areas - nondelegation doctrine and the Commerce Clause - lie at the heart of environmental cases that the Supreme Court has agreed to decide during its upcoming term, beginning October, 2000.

Article 1: Nondelegation Doctrine

Background

The purpose of the nondelegation doctrine, an aspect of separation of powers, is to restrain Congress from surrendering an unacceptable degree of legislative-type discretion to the executive branch.2 The doctrine can be said to flow from the overall constitutional structure, but in particular from Article l's vesting of" [a] ll legislative Powers" in the Congress.3 Not surprisingly, the Supreme Court eschews a literal reading of "[a]ll," recognizing that Congress routinely and necessarily delegates legislative 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. The Court has long held that such delegations pass constitutional muster if Congress gives the agency an intelligible principle to guide its exercise of that authority.

Except for two decisions in 1935, the Supreme Court has never agreed with a nondelegation-doctrine challenge,4 and the doctrine "has often been declared deceased."5 Delegations sustained by the Court have sometimes been extremely broad, including statutes instructing the FCC to regulate broadcast licensing "in the public interest,"6 authorizing the Price Administrator to set "fair and equitable" prices,7 and empowering the Attorney General to regulate drugs that pose an "imminent hazard to public safety."8 All that the Court seems to insist on (sometimes) is that Congress employ a delegation which "sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will."9 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.10

In 1999, the D.C. Circuit became apparently the first court to bless a nondelegation-doctrine attack on a federal statute since 1935. At issue in American Trucking Associations v. EPA 11 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 section 109 12 — requiring that primary NAAQSs be set so as to "protect the public health" "allowing an 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 the agency to assess the public health threat posed by air pollutants. Rather, said the court, EPA had articulated no "intelligible principle" for translating the assessment of factors into a particular NAAQS. Nor, it said, is one apparent from the statute. Translating the impact factors into 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 for a nonthreshold pollutant,13 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." Without such a principle, it insisted, EPA's discretion leaves it free to set a NAAQS at "any point between zero and a hair below the concentrations yielding London's Killer Fog."14

The court did not void the relevant CAA provision, but rather gave EPA an opportunity to develop the constitutionally required intelligible principle. Such principle, it opined, could not bring in compliance costs, since it has long been judicially held that EPA may not consider costs in setting primary NAAQSs. The principle, in theory, could call for the elimination of all health risks, but that might require EPA to set the NAAQSs at zero — a solution none of the parties seems to want. And a fixed probability of encountering effects makes no sense, given the wide diversity in the seriousness of possible effects. The best the court could suggest was "a generic unit of harm that takes into account population affected, severity and probability."15 If EPA finds that no principle is available, however, it would have to seek ratification of its NAAQSs by Congress.

Five months after the above decision, the D.C. Circuit denied EPA's petition for rehearing.16 In the petition, EPA argued that it had now found the "intelligible principle" in the Act, but the court deemed this offer too late. Only after the agency has applied it in setting a NAAQS, the court said, could a court say whether the principle satisfied the nondelegation doctrine. The court also denied EPA's suggestion for rehearing by the full circuit.17 EPA's petition for certiorari to the Supreme Court was granted on May 22, 2000.18 A decision is expected in the first half of 2001.

While EPA doubtless has discretion in setting NAAQSs, the majority opinion's assertion that such discretion is without bounds can be questioned. The NAAQS- setting provision in the CAA requires that primary NAAQSs be based on "air quality criteria" published by the agency, and be set so as to "protect the public health" allowing an "adequate margin of safety."19 Moreover, as the dissent noted, the Supreme Court has sustained against nondelegation-doctrine challenge statutes with only the most amorphous of standards (examples above). If these vague standards are constitutionally adequate constraints on agency discretion, then arguably the CAA's bounds on the setting of NAAQSs are as well.

It should be noted that American Trucking Associations does not target the congressional delegation itself, as did previous delegation decisions. Rather, it implicitly recognizes that agencies can cure delegation deficiencies in statutes, thus transforming the nondelegation doctrine into a requirement that agencies constrain their own discretion.

Within the Clean Air Act at least, the impact of the circuit decision in American Trucking Associations may be confined to standard setting. The majority was explicit that EPA approvals or disapprovals of state implementation plans, or adoptions of federal plans, are likely to pass muster. Such actions, it opined, can be assessed against the NAAQS itself.20

Moreover, in March, 2000, the D.C. Circuit in Michigan v. U.S. EPA unanimously refused to find an impermissible delegation in a different CAA provision."21 This provision allows 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.22 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 choice of the dollars per ton cut-off as "essentially unbounded," the court found the delegation lawful.23 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."

The Supreme Court's resolution of American Trucking Associations, when it comes, could have tectonic implications for federal environmental regulation generally — indeed, for all delegations of congressional authority to agencies. All future new and revised NAAQSs are presumably subject to challenge on nondelegation grounds.24 Similarly, observers have mentioned as vulnerable the federal wetlands program in the Clean Water Act (based as it is on an amorphous "public interest review" not chartered by statute) and the expansion of chemical release reporting requirements under the Emergency Planning and Community Right-to-Know Act. Ultimately, the decision could reach into all executive-branch standard setting.

A Supreme Court decision that greatly constricts congressional delegations to agencies presumably would increase the required specificity in statutory standards. Such specificity may create added difficulties in building the requisite member support for congressional bills, as compared to vague standards that often leave the difficult and politically intractable issues to the implementing agency. Alternatively, the Court could endorse the D.C. Circuit's approach, under which an agency receiving a delegation may itself supply the intelligible principle to guide the exercise of its discretion.25

Article 1: Commerce Clause

Background

The Commerce Clause of Article I grants Congress power "[t]o regulate Commerce ... among the several States ...."26 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 plaintiffs activity, alone or aggregated with similar activity by others, had a sufficient effect on interstate commerce to fall within the Commerce Power. Fortunately from Congress' point of view, the Supreme Court has adopted an expansive interpretation of the Clause' reach. 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 27 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.28 The majority explained that the Court's decisions had identified three categories of activity reached by the Clause.29 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 economic activity may be aggregated to establish substantial effect, but that other activity may not. Finding that possession of a gun in a schoolyard failed the last criterion (the only one that applied), the conviction was reversed.

In 2000, the Court showed that Lopez was no one-time aberration. First, in United States v. Morrison,30 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-motivated violence, as part of the Violence Against Women Act.31 As in Lopez, the Court focussed on the noneconomic, violent nature of the federally proscribed activity in refusing to aggregate impacts on interstate commerce under the "substantially affects" category.32 Further, the Court was unimpressed 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. Second, a week after deciding Morrison, the Court invoked the Commerce Clause again - this time to construe the federal arson statute narrowly so as to avoid raising Lopez issues.33

Beginning with Lopez, concerns were raised that some federal environmental statutes might be on shaky Commerce Clause footing.34 Vulnerabilities were suggested in the Superfund Act (cleanup sites where the contamination remains within one state), Clean Water Act (isolated wetlands), 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).

And yet the vast bulk of federal environmental provisions seems on solid ground. Either the activity regulated clearly has substantial effect on interstate commerce (e.g., air pollution), or the statute is explicit that it reaches only activities in, or affecting, interstate commerce,35 or there are congressional findings that the regulated activity affects interstate commerce.36 Moreover, case law indicates that the concept of economic activity, the apparent prerequisite for aggregating the interstate impacts of intrastate activity, may be broadly construed.37 Finally, the suggestion in Lopez and Morrison that Commerce Clause scrutiny should be higher where federal regulation intrudes on an area of traditional state control seems to bode no threat. Environmental law has become a heavily federalized area in the past half century, including many federal criminal provisions.38

Since Lopez, lower court decisions have continued to discern a Commerce Clause foundation in federal environmental laws, rejecting the idea that Lopez is a broad prescription for narrowing such programs. Lower courts have sided with the federal government in cases involving the Superfund Act,39 Clean Air Act,40 Clean Water Act,41 Endangered Species Act,42 and Migratory Bird Treaty Act.43

Worthy of special note amongst the foregoing group are the two decisions handed down after Morrison, both rejecting Commerce Clause challenges.

In Gibbs v. Babbitt,44 the Fourth Circuit - the same court that struck down the Violence Against Women Act provision on its way to the Supreme Court 45 (and one generally seen as quite conservative) - held 2-1 that an aspect of the Endangered Species Act was within Congress' commerce power. The issue was whether the U.S. could limit the "taking" of reintroduced red wolves on private land. The Fourth Circuit invoked the same "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."46 For another, without the wolves, there would be no wolf-related tourism, no scientific research, and no commercial trade in pelts. Because of this economic nexus, the effect of individual wolf takings may be aggregated. And when so aggregated, they sufficiently affect interstate commerce to satisfy the third Lopez prong. The absence of congressional findings to that effect, said the Circuit, did not preclude this conclusion.

Separately, the Circuit pointed out Lopez' assertion that "where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'"47 Evaluating the federal limit on red wolf takings and individual instances of taking against the overall congressional goal of restoring red wolves and endangered species generally, the Commerce Clause was held satisfied.

The other post-Morrison decision is Allied Local and Regional Manufacturers Caucus v. U.S. EPA.48 There, the D.C. Circuit held unanimously that Clean Air Act section 183(e), instructing EPA to limit volatile organic compounds in architectural coatings as part of the Act's goal of minimizing ground-level ozone, was within Congress' commerce power. "[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) ...."49 For example, the link with interstate commerce was clear in light of the interstate nature of ozone transport.

Thus far, the most serious Lopez challenge in the environmental realm involves the Corps of Engineers' assertion of Clean Water Act section 404 authority 50 over "isolated wetlands." Such wetlands are unconnected to navigable waters, and thus may lack the interstate commerce nexus demanded by Lopez. Indeed even before Lopez, the Seventh Circuit had gone both ways on the issue - ruling first against, then for, the constitutionality of the Corps' asserting jurisdiction over isolated wetlands.51 Following Lopez, the Fourth Circuit in United States v. Wilson 52 invalidated Corps regulations asserting jurisdiction over wetlands the use of which merely "could" affect interstate commerce.

The isolated wetlands question recently leaped to the fore when the Supreme Court on May 22, 2000 granted certiorari in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers.53 This case arose when SWANCC asked the Corps of Engineers whether a site it wished to use for a trash disposal facility contained "jurisdictional wetlands" - that is, wetlands over which the Corps asserted jurisdiction under the Clean Water Act wetlands program. Initially the Corps said no, but after finding that migratory birds used the ponds on the site, it reversed itself. Under its "migratory bird rule," the Corps now informed SWANCC it did have jurisdiction.

This requires some background. The Clean Water Act makes its regulatory programs, such as the wetlands program in section 404, applicable to "waters of the United States."54 The Act does not define this phrase, but legislative history makes clear that Congress intended it to apply broadly to the outer limits of Congress' commerce power. Taking their cue from this expansive legislative history, the Corps of Engineers and EPA have defined "waters of the United States" to include "intrastate lakes, rivers, streams ... , or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce."55 Now comes the key part. The Corps and EPA have long made it known that they interpret their definition of "waters of the United States" to include all waters, including those otherwise unrelated to interstate commerce, "which are or would be used as habitat by birds protected by Migratory Bird Treaties" or by "other migratory birds that cross state lines."56 This is the controversial "migratory bird rule"- more accurately, an interpretive convention.

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 II million 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.57 (The court also distinguished United States v. Wilson, noted above. There, it noted, the issue was whether the Corps can constitutionally regulate areas that merely "could" affect interstate commerce. Here, by contrast, there was evidence that the ponds were actually, not just potentially, used by migratory birds.)

SWANCC's petition to the Supreme Court was granted just one week after the Morrison decision, raising the question why the Court didn't simply remand SWANCC to the Seventh Circuit in light of Morrison. The petition states the issue for the Court as whether the Corps, consistent with the Clean Water Act and the Commerce Clause, can assert jurisdiction over isolated intrastate waters solely because those waters do or potentially could serve as migratory habitat for migratory birds.58 As a measure of the widespread interest in the case, 21 amicus briefs have been filed on behalf of SWANCC (the deadline for submission of briefs supporting the Corps is September 20,2000). A decision by the Supreme Court is expected during the first half of 2001.

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.59 Some precepts of standing are merely "prudential" - that is, developed by the courts as part of their inherent power of judicial self- management. Our concern, rather, is with those aspects of standing mandated by Article III of the Constitution - in particular, that article's confinement of the jurisdiction of federal courts created under that article (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 ...."60

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; and (3) it is likely that the injury will be redressed by a favorable decision.61

Once upon a time, environmental plaintiffs had a relatively easy time establishing standing. In Sierra Club v. Morton,62 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).63 Moreover, the fact that the injury was "shared by the many" did not make it less deserving.64 The following year, in what is generally regarded as the apogee of relaxed standing law, the Court in United States v. SCRAP 65 found APA standing based on an attenuated argument by a 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 an easily surmounted one in environmental cases for almost two decades. In 1983, however, then-Judge Antonin Scalia argued in a law review article that federal courts were conferring standing too liberally.66 For one thing, he said, courts need to accord greater weight to the traditional requirement that plaintiffs 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.67

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 three decisions in this new phase found the environmental plaintiff to lack standing. In Lujan v. National Wildlife Federation,68 the Court held 5-4 that where individual plaintiffs averred only that they recreated on unspecified 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,69 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 banned 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,70 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.

The 1990s drift of the Supreme Court toward an increasingly narrow concept of standing was abruptly reversed in 2000, through the Court's decision in Friends of the Earth v. Laidlaw.71

Laidlaw operated a hazardous waste incinerator that discharged wastewater into the Tyger River in South Carolina. In 1992, Friends of the Earth (FOE) brought a Clean Water Act (CWA) citizen suit against Laidlaw,72 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.

In 1997, the district court found that Laidlaw had violated the mercury limits in its permit 489 times, the monitoring requirements 420 times, and the reporting requirements 503 times.73 Some of these violations occurred after the citizen suit was filed. The district court denied injunctive relief, since there was substantial compliance by the time the court issued its order, but ordered Laidlaw to pay $405,800 in civil penalties.

The Fourth Circuit vacated.74 In its view, the case became moot once the defendant fully complied with its permit and FOE declined to appeal the district court's denial of injunctive relief. FOE was only seeking 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. Nor could plaintiffs recover their attorneys fees, since the CWA citizen suit provision limited such recovery to instances where the plaintiff prevailed.

On January 12, 2000, the Supreme Court reversed. Writing for a 7-justice majority, 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 opinion first resolves 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."75 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.

That the facility in question had since been closed, however, gave the majority pause. The closure might indeed moot the case if this event made it "absolutely clear" that Laidlaw's permit violations could not reasonably be expected to recur. This factual issue, not explored by the district court, was found to be open for consideration on remand.

Finally, the Court declined to resolve the attorneys' fees issue - an important one because so many environmental suits would not be brought without some likelihood of recovering fees from defendants. FOE argued that it is entitled to attorneys' fees on the theory that it was the "prevailing party" under the CWA citizen suit provision because it was the "catalyst" that brought about Laidlaw's compliance. Suggesting that the catalyst theory is viable in general, the Court nonetheless refused to address its validity in this case. That determination, it concluded, was initially for the district court.

The Laidlaw decision is universally seen as a significant win for the plaintiff side of the environmental citizen suit, likely to make such suits much easier to bring.76 Moreover, 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. Some specific implications of Laidlaw are -

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 tarn 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 no injury supporting a finding of injury in fact, the issue arose whether a qui tarn 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 law-enforcement interests. Concededly, however, the liberal standing rules in Laidlaw undercut 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." Reams have been written, by courts and commentators alike, about when a government action sufficiently interferes with private property as to constitute a "taking" within the meaning of the Takings Clause, requiring that the property owner be paid.

The rise of the takings issue coincides with the rise in government regulation of property use - from the advent of comprehensive municipal zoning in the early twentieth century, to the widespread use of environmental, historic preservation, growth control, and other interventions today. In 1978, a New York City historic preservation ordinance prompted the first takings decision of the modem doctrinal era.81 Since that year, almost every Supreme Court term has included at least one "takings" case. In the Congress and many state legislatures, property rights partisans have given the issue a legislative as well as judicial face, by introducing "property rights bills."

The Court's current jurisprudence of the Takings Clause can be simply stated, though not so simply applied. There are three basic types of takings.

First and most commonly pressed by property owners is the regulatory taking claim. The regulatory taking claim asserts that notwithstanding the absence of any physical intrusion by government on the property, or any government appropriation, a taking has been effected solely by the government's restriction of the property's use. There are two possibilities. If the regulation deprives the property of all economic use, then a taking will automatically be found - provided that the regulation could not have been imposed under background principles of nuisance and property law existing at the time the property was acquired.82 This is called the "total taking" rule. If, as more commonly occurs, the regulation removes only a portion of the property's use or value, then an ad hoc three-factor balancing test is used, assessing 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."83 The Supreme Court has done little by way of explicating these factors, though we do know that the degree of economic impact needed for a regulatory taking must be rather severe. Also, the impact of the government action on the property must be assessed with reference to the "parcel as a whole," not solely the regulated portion. A wide spectrum of federal actions 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, our interest here, environmental regulation.

The second type of taking is the physical taking. A physical taking claim asserts that the government, directly or through third parties, has effected a physical invasion of private property. Again, there are two subtypes. If the invasion is deemed "permanent," it will be held a taking in almost all instances.84 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 the rails-to-trails program.

The third type of taking is the exaction condition on a development permit. Here, the government does not forbid a land use, but extracts a concession in return for its approval. The takings criterion for such exaction conditions is two-fold. They must substantially advance the same government purpose as justified the permit program in question.85 And the burden imposed on the property owner by the exaction must be "roughly proportional" to the burden that the property owner's proposed project would have on the community.86 Exactions-based takings claims are numerous at the local level. Curiously, however, the 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, arguably falls within the test's reach.87

Before the court even reaches the takings claim in a case, there are numerous threshold hurdles that the plaintiff must surmount. Is the case ripe - that is, was there a "final" government decision? Is the statute of limitations met? Did the plaintiff own the property as of the date of the alleged taking? Many takings cases founder on these shoals.

Though the takings issue most often arises in disputes over local land-use regulation, a few federal environmental programs have been implicated. The federal environmental program most commonly attacked in takings suits is the Corps of Engineers/EPA wetlands permitting scheme under the Clean Water Act - known as the "404 program."88 Almost the entire spectrum of takings issues has arisen at some point in these wetlands cases.89

Two fact scenarios have been common in the wetlands/takings cases. In the first, the wetland owner is denied a 404 permit and argues that as a result, the property of which the wetland is a part has suffered a severe decline in economic use or value.90 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 (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.91

Once past the ripeness hurdle, permit-denied plaintiffs have enjoyed some success in convincing the Court of Federal Claims 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,92 while a somewhat greater number have been unsuccessful. Prominent issues in these wetlands/takings cases include first, whether a taking claim can be maintained as regards a wetland purchased after the 404 regulatory scheme was enacted in 1972 (the decisions say that purchasers following enactment of a regulatory scheme lack investment-backed expectations that the property can be developed, and so cannot assert a taking based on restrictions under that scheme). A second prominent issue is 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). A third recurring issue is how great the drop in market value must 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 cases 93).

The second common scenario in the wetlands/takings cases arises when actions of the Corps cause delay in commencing development of 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.94 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.95 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.96

Many federal environmental programs outside the wetlands realm also have generated regulatory takings decisions - but far fewer per program. The Endangered Species Act,97 despite its high profile in the property rights debate, has produced only a few reported takings decisions, and none in which the property owner succeeded."98 Surface mining restrictions under the Surface Mining Control and Reclamation Act 99 have prompted a few claims - again, with very few successfu1.100

Federal environmental laws that have produced physical taking rulings include, first, the rails-to-trails program.101 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.102 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.103 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.104

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,"105 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."106

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."107 For the most part, it indicated, states must seek protection from the impact of federal regulation in the political process, not in 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.108

In the 1990s, the pendulum swung back toward state immunity - in a related, but different, context. The newer cases asked whether Congress can compel state participation in the implementation of Commerce Clause-based federal programs.'0g The answer was no.

The first decision was New York v. United States,110 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."111 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,112 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.113

In the second decision, Printz v. United States,114 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, as it had in New York, 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."

Since New York and Printz, research reveals only one successful Tenth Amendment challenge to a federal environmental statute. Acorn v. Edwards 115 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 "conscription of state legislative functions," said the court, "is clearly prohibited by [New York]." 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/Printz decision, the Fourth Circuit in Virginia v. Browner 116 failed to find the direct compulsion of state action that the Supreme Court decisions prohibit. Virginia was a state challenge to EPA's use of sanctions against it, required under the Clean Air Act, when the state submitted 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 tantamount to compulsion, even when they have significant consequences for a state.11'7 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.118

A second federal-environmental-statute technique blessed by Virginia is sanctions triggered by state inaction, but applying solely to private activity. More specifically, EPA had imposed on the state the Clean Air Act's "offset sanction," under which the quantity of existing air 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 (individuals proposing to build or modify a factory), the court held that they do not burden the state as a government, and thus do not offend the Tenth Amendment.119 Third and finally, federal implementation of a federally desired program within a state when the state fails to act, another common approach, is constitutional. As above, the state is not compelled to regulate.120 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.121

There appears to be one circumstance where the United States may regulate the state directly: where the state itself engages in an activity that Congress seeks to regulate under the commerce power. In the area of federal air pollution regulation, for example, this may occur when a state operates a fleet of police cars, with attendant emissions. Or when a county operates a solid waste landfill. 122 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.123

A recent and unanimous Supreme Court opinion affirms this sovereign/enterprise distinction. In Reno v. Condon,124 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.

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,125 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:
Federal Authorization of Private Suits Against States

Background

The Eleventh Amendment is yet another tool the current Supreme Court has used to embody its concept of federalism. In pertinent part, the amendment provides: "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 ...." Eleventh Amendment jurisprudence seeks to reconcile the competing demands of state sovereign immunity and the supremacy of federal power. The amendment stands for the proposition that the Supremacy Clause 126 of the U.S. Constitution notwithstanding, not all exercises of congressional power override state sovereign immunity.

Modern Eleventh Amendment jurisprudence takes a broad view of the amendment's reach - or, more accurately, of the principles of state sovereign immunity that the Eleventh Amendment exemplifies, but does not exhaust.127 While the amendment's text 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.128 While the amendment's text speaks only to suit in federal court, the Court has barred suits in state court as well.129 And while the amendment speaks only to suits by "Citizens," the Court has prohibited suits by recognized Indian tribes,130 federal corporations,131 and foreign countries.132 But note: the amendment does not apply to municipal corporations or other governmental entities that are not an arm of the state; importantly, Congress may authorize private suits against such entities.133

Though the Amendment and the constitutional principle of state sovereign immunity cover a wide waterfront, there are exceptions.134 First, while it is held that 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.135 The legal fiction behind this principle 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. 136

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.137 There, the Court held that petitioner's claim, which was barred by the Eleventh Amendment, also could not be brought as an Exparte 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 Exparte Young."138 lmportant here,the Court explicitly found the Clean Water Act citizen suit provision and Emergency Planning and Community Right-to-Know Act not to be such a remedial scheme, since they authorize enforcement directed at entities other than the state - respectively, "any person" or the "Governor."139

A second exception to the Eleventh Amendment prohibition is state consent. A state may waive the protection afforded it under the Eleventh Amendment by consenting to be sued.140 Consent may take the form of the state's voluntary appearance in federal court and defense of the case on the merits,141 a state statute in which it consents to be sued, or a clear statement of a state's agreement to administer a federal-state program that imposes federal standards on the state. But mere receipt of federal funds cannot establish consent.

A third exception is congressional abrogation of state sovereign immunity. Congress, says the Supreme Court, may abrogate state immunity pursuant to section 5 of the Fourteenth Amendment. 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 environmentally important commerce power.142

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."143 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.144 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 and proportionality between the injury to be prevented or remedied and the means adopted to that end."145 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 as to that guarantee.146

A final exception to states' Eleventh Amendment immunity is suit against the state by the United States. Unlike suits by nonfederal parties, the Eleventh Amendment does not block suits against states by the United States.147

Yet another Eleventh Amendment challenge will be heard by the Supreme Court in its upcoming term - this time involving an Americans with Disabilities Act suit against a nonconsenting state. 148

Since the Eleventh Amendment and the broader constitutional embodiment of state sovereign immunity assure that nonconsenting states cannot be subjected to private suit through the Commerce Clause, such suits under most federal environmental statutes cannot constitutionally 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. 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.149

Notwithstanding, these Eleventh Amendment-related constraints appear not to present a major hurdle for Congress in its efforts to tackle environmental problems. Recall that we are talking only about suits against states, not political subdivisions of states or nongovernmental actors. And we are not talking about suits that seek to coerce the states to enact or administer federal programs. That option was already lost to Congress through the Commerce Clause cases. Here, we are dealing solely with the species of state conduct that Congress, under the Commerce Clause, remains free to regulate: non-sovereign activity. As noted earlier, such actions might include the use of state vehicles (e.g., police cars) and the operation of landfills. The impact of the new Eleventh Amendment jurisprudence falls solely in this environmentally marginal area.

Moreover, it can hardly be said that states are now free, in these non-sovereign activities, to violate standards imposed under federal environmental laws. As noted above, state officials still could be constrained by injunctions obtained 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). An interesting question in this regard is whether Congress could authorize private suits against state non-sovereign activity, Eleventh Amendment notwithstanding, by characterizing them statutorily as being on behalf of the United States. A similar question recently was presented to the Supreme Court involving a private qui tarn 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.150

To the extent that private suits against states are desired by Congress, consideration might be given to encouraging states to waive sovereign immunity by making such waiver a condition to receiving delegation of the federal program, or to receiving federal money. As to the latter, the Court has upheld 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.151 In view of the Court's commitment to state immunity, however, some judicial curbing of Congress' power in this area cannot be ruled out.

The citizen suit provisions found in most federal environmental statutes make the Eleventh Amendment limit on suits against the states explicit. Typical language in environmental citizen-suit provisions 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.152

Of course, the Eleventh Amendment would have constrained suits under this provision even without the explicit mention.

Several Eleventh Amendment decisions stem from Clean Water Act (CWA) citizen suits against states or state officials. These suits have all permitted suits against state officials for injunctive relief, citing Ex parte Young. An early decision is Committee to Save Mokelumne River v. East Bay Utilities District, holding that the Eleventh Amendment does not bar suit against the members of the California Regional Water Quality Control Board for prospective injunctive relief.153 Following the Supreme Court's narrowing of Ex parte Young in a 1996 decision,154 the Ninth Circuit has continued to look kindly on such CWA citizen suits against state officers, noting the approving mention of the CWA in that decision's discussion of Exparte Young.155 But as Eleventh Amendment jurisprudence plainly requires, a CWA citizen suit against the state itself, or one against a state official for civil penalties based on past violations of the CWA, has been held barred.156

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."157

In Prisco v. State of New York,158 the Supreme Court's new teaching that Congress cannot abrogate state sovereign immunity under a commerce power-based statute such as the Superfund Act was echoed by a federal district court. Prisco dismissed on Eleventh Amendment grounds a landfill owner's Superfund claims against state defendants alleged to have run the landfill as a sting operation to uncover organized crime involvement in the waste industry. In addition, the court dismissed plaintiffs Superfund Act claims against individual state officials because they sought monetary relief, not covered by Ex parte Young. By contrast, plaintiff's Resource Conservation and Recovery Act (RCRA) citizen suit seeking prospective injunctive relief against state officials was held constitutional. Like the CWA citizen suit provision, 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 the Supreme Court to bar Ex parte Young suits.159

In a somewhat specialized waste case, a district court found inoffensive to the Eleventh Amendment an interstate commission's suit against a state for violating a radioactive waste compact.160 The amendment, said the court, is inapplicable because the state never possessed the sovereignty to form the compact without congressional authorization. Also, when it signed the compact, the state consented to suit by the commission if it did not act in good faith.

Finally, an important ruling in an Endangered Species Act (ESA) case holds that the Exparte Young exception does not limit courts to simply ordering a cessation of the state official's unlawful activity.161 Other equitable relief appropriate to achieving that end is also proper. The unlawful activity in question was the state's implementation of its commercial fishing regulatory scheme, under which the state was issuing permits for use of gear harmful to the endangered Northern Right Whale. This activity, in the view of the lower court, constituted a "take" of the whale by the state, unlawful under the ESA. The scope-of-relief ruling enabled the court to affirm a lower-court injunction requiring state officials to apply for an incidental-take permit under the ESA for Northern Right Whales, and to prepare a proposal for restricting the use of fixed-fishing gear in state waters to minimize harm to such whales.162

Footnotes

1 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).

2 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.

11 175 F.3d 1027 (D.C. Cir. 1999), petition for rehearing denied, 195 F.3d 4 (D.C. Cir. 1999),petition for cert. granted, 120 S. Ct. 2003 (May 22,2000) (No. 99-1257), 120 S. Ct. 2193 (May 30, 2000) (No. 99-1426).

13 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.

17 Id.

20 175 F.3d at 103 7. The court made this point in order to distinguish away an early decision rejecting a nondelegation attack on the Clean Air Act. South Terminal Corp. v. EPA, 504 F.2d 646, 676-677 (I-"' Cir. 1974). To be sure, this decision arose from EPA's adoption of an implementation plan, rather than a NAAQS. Nonetheless, the opinion contains a broad endorsement of the limits on EPA's NAAQS-setting authority, and thus is in tension with American Trucking Associations.

24 Nondelegation challenges to existing NAAQSs would seemingly be time barred. CAA section 307(b)(l) instructs that petitions for review of primary and secondary NAAQSs must be filed within 60 days after notice of promulgation appears in the Federal Register. 42 U.S.C.§ 7607(b)(l).

25 Cf. Gabriel Clark. The Weak Nondelegation Doctrine and American Trucking Ass'ns v. EPA, 2000 Brigham Young Univ. L. Rev. 627 (distinguishing "strong nondelegation," limiting Congress' ability to make the delegation, from "weak nondelegation" used in American Trucking, allowing agency to articulate the intelligible principle, and arguing for adoption of the latter) with Michael R. Dimino, D. C. Circuit Revives Nondelegation Doctrine ... Or Does It?, 23 Harv. J. L. & Pub. Pol'y 581 (2000) (arguing that strong nondelegation is only constitutionally defensible approach).

28 See generally Kenneth R. Thomas, United States v. Lopez: The Limits of Federal Power Under the Commerce Clause, CRS Report 95-1047 (1995).

31 See T.J. Halstead, United States v. Morrison, the Supreme Court Declares 42 U.S.C. 13981 Unconstitutional, CRS Report No. RS 20584 (May 22, 2000).

32 "[l]n those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor." Id. at 1750.

34 See generally John P. Dwyer, The Commerce Clause and the Limits of Congressional Authority to Regulate the Environment, 25 Envtf. 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).

35 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 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.. Clean Air Act, 42 U.S.C. § 7511b(e)(1)(C).

36 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.

38 See, e.g., Gibbs, 214 F.3d at 500-501 (noting long history of federal protection of natural resources, including endangered species). The predecessor of the Clean Air Act was first enacted in 1955; the predecessor of the Clean Water Act in 1948.

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

40 Allied Local and Regional Manufacturers Caucus v. U.S. EPA, 215 F.3d 61 (D.C. Cir. 2000) (EPA rule limiting volatile organic compounds in architectural coatings).

41 United States v. Hartsell, 127 F.3d 343 (4th Cir. 1997) (Act's coverage of discharges into public sewer systems).

42 Gibbs, 214 F.3d 483 (application of Act's "taking" prohibition to red wolves on private land); National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (2-1), cert. denied, 524 U.S. 937 (1998) (application of "taking" prohibition to Delhi Sands Flower- Loving Fly, a subspecies located entirely in one state); Building Industry Ass'n of Superior California, 979 F. Supp. 893 (D.D.C. 1997) (listing of various species of fairy shrimp as endangered or threatened).

45 Brzoncala v. Virginia Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999), aff'd sub nom. United States v. Morrison, 120 S. Ct. 1740 (2000).

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