I know you want to read about the constitution and environmental law

I’m in the middle of writing a paper, and it’s been frustratingly slow going. At the moment it’s an even bigger source of stress than the job search or the car dilemma. I even had a sexual dream about the very sweet but fairly schlumpy professor who assigned it. In the dream we discussed the paper, among other things.

The paper is about the constitutional foundation of environmental law, or lack thereof. As you may remember from your junior high school civics class, the federal government is one of limited powers. The federal government is meant to regulate just a few things--including interstate commerce--and the rest is left to the states. From the New Deal until the mid-90s, all three branches of the federal government took an expansive view of interstate commerce. Federal statutes regulating such things as labor, guns, and the environment were enacted under the commerce clause. But in 1995, the Supreme Court started to put new limits on how far congress could go under the commerce clause. Under the now more limited interpretation of the commerce clause, it seems that many federal environmental laws could be vulnerable to constitutional challenge. The big pollution control laws like the Clean Air Act and Clean Water Act are probably safe for the most part, if only because these statutes have caused pollutants to become items of interstate commerce. For example, cap and trade programs under the Clean Air Act allow industries to trade the right to emit a certain amount of pollutants.

On the other hand, the Endangered Species Act seems quite endangered itself, especially considering our even more conservative and less environmentally sympathetic new Supreme Court. Endangered species just don’t have the direct relationship to commerce that the court is now looking for. The Endangered Species Act is hugely important, not just for the sake of threatened creatures, but because it can be used as a tool to halt development that may be harmful in many other ways. The very first significant case involving the ESA was the famous or infamous snail darter affair, when a huge dam that was already close to completion was stopped because it threatened a homely and insignificant little fish (and other probably more important but less protected things).

The most simple and elegant solution to this problem would be a constitutional amendment saying that congress has the power to preserve and protect the environment. Unfortunately in this case, passing a constitutional amendment is a long and difficult process. Remember the ERA? But if someone asks you if you would support an environmental amendment to the constitution, you should say yes.