This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause -- the Court's interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect.
This study supports two principal conclusions. First, the modern Court has been consistently hostile to environmental regulation. In the context of the commerce clause, for the past quarter century the Court has rarely upheld a natural resource law, whether promulgated by Congress or by the states. This Article considers cases in which the Court invalidated the governmental regulation under scrutiny in ten out of eleven instances. Observing this trend, Chief Justice Rehnquist and Justice Blackmun accused some of their colleagues of engineering a return to laissez faire government.
As a second principal conclusion, this study has uncovered a subtle inconsistency between the Court's affirmative and dormant commerce clause analyses. In particular, when the federal government has sought to regulate the use of water and land under the affirmative commerce clause, the Court has emphasized the natural, noncommercial nature of the protected resources rather than the commercial nature of the regulated activity. In the absence of commercial or economic activity, therefore, the federal government lacks commerce clause regulatory authority under the rationale of Lopez. Simultaneously, when the states have attempted to regulate the use of land, water, or fish, the Court has treated such things as market commodities rather than natural resources. As a result, the Court has invalidated those state regulations under the dormant commerce clause as constituting an undue interference with commodities in the flow of interstate commerce.
Christine A. Klein, The Environmental Commerce Clause, 27 Harv. Envtl. L. Rev. 1 (2003), available at http://scholarship.law.ufl.edu/facultypub/6