Federalism in Environmental Protection
Appel, Peter A., Justice System Journal
In the last seven years, the Supreme Court has decided several cases that potentially alter the balance between the states and the federal government. Although these decisions have generated much controversy, in some ways they only address some important federalism questions at the periphery. Professor Appel examines four areas of environmental law that the recent decisions either only inform or do not address at all: cleanup of hazardous waste sites; the effect of state enforcement actions on citizen enforcement brought under federal environmental laws; the effect of state enforcement actions on federal enforcement actions; and the management of federal lands within the states. Each of these areas raises difficult federalism problems, but the Court's recent federalism jurisprudence does not begin to address those problems. The solution to these federalism problems, then, likely lies within the political branches.
"In recent years the Supreme Court has shown a special solicitude to claims that federal legislation or federal courts have encroached on the prerogatives of the states or interfered with state processes." Those words could introduce a symposium on federalism issues in the year 2001, but they were written to introduce such a symposium on federalism nearly a generation ago (Yale Law Journal, 1977). That symposium focused on the intricate relationship between the state and federal courts in several difficult areas, including 1) habeas corpus issues (Cover and Aleinikoff, 1977); 2) the relationship between state and federal courts when criminal defendants in state courts sought federal court protection from prosecution (Fiss, 1977); and 3) the Supreme Court's thenrecent ruling in National League of Cities v. Usery (1977), which imposed limits on congressional regulation of the states (Michaelman, 1977). Some of those issues are still festering; some have become settled parts of modern jurisprudence. The federalism issues that occupied the primary focus of that symposium may no longer form the immediately pressing federalism issues of today, but the basic struggle to determine the boundary lines between state and federal authority remains. Sometimes, reflection on the relationship between the states and the federal government seems to happen most when the Court appears to tilt the balance in favor of the states.
Today, the Supreme Court has found other avenues to explore and explain the constitutional relationship between the federal and state governments. Some of the Court's recent cases create firm barriers that the federal government may not transgress. For example, the federal government may not waive the sovereign immunity of the states to suits by private citizens against the states in federal or state courts (Alden v. Maine, 1999). Congress may, however, waive state sovereign immunity if Congress is enforcing its authority to protect civil rights under the Fourteenth Amendment, but even then the Court will look carefully at legislation to see whether Congress actually had a basis to exercise its Fourteenth Amendment authority (Board of Trustees v. Garrett, 2001). The federal government may not commandeer state government officials to enforce federal law or require a state legislature to enact legislation to comply with a federal demand (Printz v. U.S., 1997; New York v. U.S., 1992). The Court has recently announced that congressional authority under the commerce clause is more limited than previously believed and has restricted congressional regulation of wholly intrastate activity to economic activity (U.S. v. Morrison, 2000; US. v. Lopez, 1995). Congress may regulate the conduct of state governments generally when it regulates private conduct, but the Court has created rules of statutory construction that mandate a clear statement from Congress that it intends to regulate the state conduct. Although some of these rules have roots in earlier decisions, the Court's recent cases have strengthened and extended them. …