The dormant Commerce Clause bars states from protecting ecosystems against out-of-state harms
Evidence
Somewhat paradoxically, the existing division of authority between federal and state sovereigns also creates obstacles to states’ enacting laws that are more protective of the environment. The U.S. Supreme Court has interpreted the Commerce Clause’s conferral of authority to Congress over interstate commerce to create, by negative implication, a limit on state laws that unduly burden interstate commerce. Interstate commerce, to that extent, maintains a privileged position in the constitutional scheme. … Whatever the merits of the Court’s rulings, the impact on states’ efforts to prevent threats to their ecosystems from sources outside their borders has been swift and without exception. Prompted by a series of uncompromising rulings by the Supreme Court, lower courts have struck down virtually every one of those laws based on their discriminatory and adverse impact on interstate commerce. The need to protect interstate commerce from discriminatory regulation and undue burdens has overridden the environmental protection concerns of the states. — Richard J. Lazarus, The Making of Environmental Law, 198
Categorization
- XREF: Builds on the ch5 claim that decentralized regulation pushes states to export pollution and that transboundary problems defeat local control — here shows the constitutional mechanism that structurally bars states from internalizing those externalities. — connects to: The Constitution contains no textual support for environmental protection’s core aims — Richard J. Lazarus, The Making of Environmental Law, 200; Federal environmental law rests awkwardly on a commerce rationale foreign to its aims — Richard J. Lazarus, The Making of Environmental Law, 195; Environmental statutes regulate commerce without pursuing commercial aims. — Richard J. Lazarus, The Making of Environmental Law, 900 (+2 more)
- DEFINE: Introduces the ‘negative implication’ of the Commerce Clause — the dormant Commerce Clause — as a structural barrier to state environmental protection.
Broader Connections
- Federal environmental law rests awkwardly on a commerce rationale foreign to its aims
#corroborates(0.82) — Richard J. Lazarus, The Making of Environmental Law, 195 - Federal pollution law rests on Commerce Clause because courts cannot handle modern nuisance cases
#expands(0.80) — Richard J. Lazarus, The Making of Environmental Law, 782 - Dispersive pollution alone lets states export harm without degrading their own environment.
#qualifies(0.80) — Richard J. Lazarus, The Making of Environmental Law, 427 - Environmental statutes regulate commerce without pursuing commercial aims.
#corroborates(0.75) — Richard J. Lazarus, The Making of Environmental Law, 900