THE ENVIRONMENTAL COMMERCE CLAUSE

Caroline, 11th - Menlo Park, CA
Although the United States Constitution includes a right to free speech, free religion, and various human rights, citizens lack a Constitutional right to a clean and healthy environment. During the late 1960’s, the United States experienced an environmental crisis, which placed pressure on government legislators and climate activists to better protect the environment. In the following decade, the U.S. passed many major environmental statutes, nearly all of which drew Congressional authority from Article 1, Section 8 of the United States Constitution, commonly known as the commerce clause. This clause states that “The Congress shall have Power…to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” By leveraging the commerce clause, the U.S. government has passed major environmental statutes. However, Supreme Court rulings have limited the scope of the commerce clause, leading environmental activists to urge the United States to adopt a Constitutional amendment guaranteeing the right to a clean and healthy environment, protecting human safety as climate change’s civilian impacts grow increasingly dire.

Despite the lack of an explicit right to a clean and healthy environment, United States legislators have used the Federal power granted by the interstate commerce clause to pass environmental legislation since the 1970s. Molly Weiner, a research assistant at the Yale Center for Environmental Law and Policy, asserted that “the Commerce Clause has been widely interpreted to allow the federal government to regulate interstate commerce…the federal government can regulate activities that negatively affect the environment and poorly affect interstate commerce.” Weiner argues that legislators have interpreted the commerce clause to give Congress the power to pass and regulate environmental initiatives. As Weiner writes, a “broad interpretation of the Commerce Clause” would provide authority to many major environmental statutes, including the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act, all of which allowed for sweeping environmental action.

Notably, the 1972 Clean Air Act mandated that “Each State shall…adopt and submit to the Administrator…a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region,” thereby holding states accountable for their environmental impact. The Clean Water Act set similar goals by recognizing that “it is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” This goal displays how the U.S. creates environmental legislation that heavily delegates the responsibility of climate action to individual state governments. However, the Environmental Protection Agency emphasized the importance of the national scope of both the Clean Air Act and Clean Water Act, writing that “the collective goal of US environmental policy is to protect the environment for future generations…Laws written by Congress provide the authority for EPA and the other Federal agencies to write regulations.” The EPA emphasized the importance of this U.S. environmental policy since it provided authority for regulations that hold individuals, corporations, and governments responsible for their environmental impact. These regulations are only made possible by Federal power granted by the interstate commerce clause.

Although the commerce clause provides opportunity for environmental legislation, its impact has been limited by the Supreme Court’s interpretation of the scope of the clause and the increasingly political nature of climate action. Supreme Court cases regarding the commerce clause have emphasized the importance of preventing overreaching Federal regulations. Historian Lydia B. Hoover argued in the 1997 William & Mary Environmental Law and Policy Review that “the Commerce Clause is worded clearly on its face, and the difficulty with its application comes with interpreting those words and also with the changing interpretation over the years.” Hoover suggested that the Supreme Court's interpretations of the applications of the commerce clause have limited its scope. Many Supreme Court rulings on the commerce clause concern the potential of an overly centralized federal government. For example, Molly Weiner wrote that West Virginia v. EPA “effectively neutered the ability of the federal government, particularly the EPA, to regulate environmental pollution, and gave a huge amount of this power instead to the states,” demonstrating the Court’s preference towards state oversight rather than federal power. Moreover, Christine A. Klein, Professor of Law at the University of Florida Levin College of Law, wrote in 2001, “The Court repeated its now-familiar concern that the judiciary should not tolerate ‘federal encroachment upon a traditional state power’… emphasizing the states' role in controlling water pollution.” The ruling in this Supreme Court case demonstrates how the Court limited the application of the interstate commerce clause to reduce federal power.

This pattern continued in United States v. Morrison (2000), in which the Court limited the applications of the commerce clause, and emphasized that “The Constitution requires a distinction between what is truly national and what is truly local.” In addition to Supreme Court commerce clause cases, increasing politicization surrounding climate action has decreased the effectiveness of the commerce clause and environmental legislation. Steve Cohen, professor at the Columbia Climate School, argued that legislation passed under the authority of the commerce clause have been less effective because they require “a partnership between the federal government and the states,” but conservative state governments “are not interested in partnering with the federal government.” Cohen argued how politics, in addition to Supreme Court interpretations of the commerce clause, limit the impact of environmental legislation.

Due to the limited effectiveness of the commerce clause, environmental activists and some state governments proposed a Constitutional amendment guaranteeing a right to a clean and healthy environment. In a White House press statement in 2015, former President Obama highlighted the commerce clauses’ flaws, claiming that “court decisions have led to uncertainty and a need for clarification.” Christine Klein echoed Obama’s concerns, writing that “Federal environmental laws might be rendered vulnerable to commerce clause challenges if the Court shifts its focus from the nature of regulated activities…virtually any federal law with noncommercial social or environmental goals could be invalidated under this logic.” Klein’s analysis revealed that the Court could further limit the commerce clause, rendering current environmental statutes less productive. Proposing an alternate solution, environmental activists urged the U.S. to adopt an amendment to the Constitution, known as a “Green Amendment,” which promised a Constitutional right to a clean and healthy environment, thus heavily encouraging the United States to further prioritize the regulation of climate change and its impact on humans.  Hawaii’s proposed Green Amendment guaranteed “all individuals the right to a clean and healthy environment and a stable climate.” Environmental activists argued that the United States should adopt a similar amendment, thus ensuring that climate change is a national priority.

By leveraging the Congressional power granted by the commerce clause of the Constitution, the United States has passed major environmental statutes that aim to protect the environment. However, the impact of this legislation has been limited by both Supreme Court rulings and the increasing politicization of climate action. As climate change grows increasingly dire, environmental activists urge state governments and the Federal government to adopt a Constitutional amendment guaranteeing a right to a clean and healthy environment.