Judicial activism and restraint and the role of the United States Supreme Court in environmental regulation

Material Information

Judicial activism and restraint and the role of the United States Supreme Court in environmental regulation
Mattox, Jennifer Leigh
Publication Date:
Physical Description:
vii, 130 leaves : ; 28 cm


Subjects / Keywords:
Environmental law -- United States ( lcsh )
Environmental policy -- United States ( lcsh )
Environmental protection -- Societies, etc -- United States ( lcsh )
Political questions and judicial power -- United States ( lcsh )
Environmental law ( fast )
Environmental policy ( fast )
Environmental protection -- Societies, etc ( fast )
Political questions and judicial power ( fast )
United States ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )


Includes bibliographical references (leaves 127-130).
General Note:
School of Public Affairs
Statement of Responsibility:
by Jennifer Leigh Mattox.

Record Information

Source Institution:
|University of Colorado Denver
Holding Location:
|Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
61134333 ( OCLC )
LD1190.P86 2004m M37 ( lcc )

Full Text
Jennifer Leigh Mattox
University of Colorado at Colorado Springs, 1998
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Public Administration

.This thesis for the Master in Public Administration
degree by
j Jennifer Leigh Mattox
^ has been approved

Mattox, Jennifer Leigh (Master of Public Administration)
Judicial Activism and Restraint and the Role of the United States Supreme Court
in Environmental Regulation
Thesis directed by Professor Lloyd Burton
This research focused on assessing the role of the United States Supreme
Court injudicial review of cases involving environmental regulation. Using a
dual framework of legal principles defining judicial activism and a typology of
judicial restraint, the topics of judicial review of agency action, citizen suit
standing, and regulatory takings are examined. The constitutional basis for much
environmental regulatory authority is the Commerce Clause,the high courts
interpretation of which has also undergone transformation with the development
of the regulatory state. In the topics of judicial review of informal agency action
and citizen suit standing, the Court reacted to environmental regulation and its
consequences with expansive judicial activity in the 1960s and 1970s, following
with judicial restraint beginning in the 1980s. Regulatory takings did not follow a
pattern of restraint, but instead focused on the balance between property as a
constitutionally protected interest and the power of the government to regulate for
the benefit of the public. This research concludes with the finding that the Court
on the whole does not seem to be interested in protecting the environment per se,
but instead is more concerned with the fit of environmental regulation into the
constitutional construct under separation of powers and federalism principles.
Based on these findings, I recommend that legal challenges to the sufficiency of
actions taken by environmental agencies focus on these arguments as an action-
forcing mechanism. I also recommend further study of treatment of these topics
by the appellate courts and the inclusion of the principle of delegation of powers
under the Constitution to round out this analysis.
This abstract accurately represents the
recommend its publication.
iyd Burton

I would like to thank my panel members, Dr. Lloyd Burton, Dr. George
Busenberg and Dr. Linda Donnelly, for their inspiration and support in
completing this work. I also appreciate the staff of the Graduate School of Public
Affairs and their help with the fine print in completing this project. Thank you,
Thanks also go out to my parents, Chuck and Judi Mattox, for your continuing
motivation and belief in my scholarship.
Finally, I would like to thank Audra Bishop, the best proof reader and a great

1. INTRODUCTION..........................................1
2. RESEARCH METHODOLOGY..................................2
Topic Definitions..................................2
Operational Definitions of Activism and Restraint..5
Time Frame and Other Constraints...................8
JURISPRUDENCE AND ACTIVISM.............................10
Early Environmental Policy and the Rise of the
Regulatory State..................................10
The Impact of Environmental Law on the Regulatory
State and Federalism: A Brief History.............12
Commerce Clause Jurisprudence.....................15
Stages of Judicial Deference....................23
Application of Deference in the Age of
Environmentalism and Judicial
Deference (1970-1978).......................29
Judicial Review and Agency
Deference (1980-Present)....................34

Origins of the Standing Doctrine
The Evolution of the Standing Doctrine
and Judicial Activism...................................46
Environmental Standing
Jurisprudence (1970-1980).........................46
Environmental Standing
Jurisprudence (1980-Present)......................49
6. REGULATORY TAKINGS.........................................56
Property as an Evolving Concept and
its Implications on Jurisprudence.......................56
The Modem Takings Doctrine..............................58
Regulatory Takings and Activism.......................62
Regulatory Takings Jurisprudence 1970-1980........62
Regulatory Takings Jurisprudence 1980-Present.....63
7. FINDINGS AND CONCLUSIONS...................................72
Judicial Review.................................73
Regulatory Takings................................77
8. CONCLUSION.................................................87

8. CONCLUSION..............................87

Two centuries ago, Supreme Court Justice John Marshall declared in
Marbury v. Madison that it is, emphatically, the province and the duty of the
Judicial department to say what the law is.1 The focus of this research centers on
that responsibility with respect to environmental regulation. Specifically, this
research focuses on the judicial influence in environmental policy in order to
define the role of the Court in present and future policy implementation. As a
policy making institution itself, the degree to which the United States Supreme
Court engages injudicial activism and restraint is analyzed to identify patterns of
conservatism in environmental jurisprudence. A dual theoretical framework
incorporating principles of judicial activism and a typology of judicial restraint are
employed in this analysis. The three topics of judicial review of agency decision-
making, citizen suit standing and regulatory takings are reviewed in Supreme
Court opinions in two time periods of 1970-1980 and 1980-present, respectively.
Under this framework, the Court has engaged in both activism and restraint to
maintain institutional equilibrium that encompasses but does not rely on
protection of the environment under regulation. Recommendations include
further study to identify lateral effects of environmental jurisprudence on agency
management practices and policy.

This research is limited to designated topics in environmental jurisdiction,
defined and discussed below. Operational definitions of activism and restraint
and two specific time frames provide the structure. Extensive legal research and
content analysis2 were used to identify whether there is a pattern of conservatism.
Overall, the research attempted to answer the following questions via the
prescribed methodology:
1. What is the role of the United States Supreme Court in environmental
policy implementation, and how has it changed over time?
2. What are some of the factors that seem to account for these changes?
The research expected that the major topics at issue in environmental context
would revolve around concepts that center on judicial involvement in
environmental policy as derived from constitutional, legislative, and judge-made
doctrines. Therefore, the research topics of interest were chosen and defined
Tonic Definitions
Judicial review of agency decision-making is defined as the power of the
courts to review legislative or executive acts. Judicial review is governed by
legislative grants via acts of Congress, as demonstrated by provisions of pertinent
environmental laws.3 In the absence of a legislative directive, judicial review of

agency decision-making is controlled by relevant sections of the Administrative
Procedure Act of 1946 (APA).4 Under 7 U.S.C. §706, judicial review occurs
according to the following:
To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant law, interpret constitutional
and statutory provisions, and determine the meaning or applicability
of the terms of an agency action. The reviewing court shall-
(1) compel agency action unlawfully withheld or unreasonably
delayed; and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law;
(B) contrary to constitutional right, power, privilege or
(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed
on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.5
The United States Environmental Protection Agency (EPA) promulgates many of
its rules and regulations using informal agency action procedures.6 This research
is limited to judicial review of informal agency action because informal
procedures are less adjudicatory in nature and are subject to greater scrutiny by
the Court.

Standing is defined as the right of various parties to sue under judicial
doctrine as delineated by common law, statute, or the Constitution under Article
III.7 Article III only requires that a case or controversy exists, meaning that
there be a real and actual case or controversy at issue.8 Under the 1992 decision
of Lujan v. Defenders of Wildlife, a party must establish injury-in-fact, causation,
and redressability.9 As a creature of the judiciary, the standing doctrine was
formulated in response to early indications of the Courts interpretation of the
constitutional case-or-controversy requirement. Early citizen suits were critical in
ensuring compliance with federal environmental law via the executive and
legislative branches and responsible regulatory agencies.10 The standing inquiry
is limited to cases brought under environmental citizen-suit provisions whose
issue is whether those parties are entitled to standing.
Regulatory takings is a legal concept developed in the early 1920s,
fashioned under property principles enunciated in the Fifth Amendment of the
Constitution that .. .nor shall private property be taken for public use without just
compensation.11 Underlying this basic tenet of constitutional doctrine is the
notion of regulatory takings, defined as occurring where a government regulation
effectuates a taking of private property.12 The 1978 landmark opinion of Penn
Central Transportation Co. v. New York City13, discussed infra, sets forth the
three-factor test to measure the extent and/or existence of a takings effectuated by
government regulation. Penn Central articulates basic property concerns and is
particularly suited to address environmental regulation aimed at the use of private
property subject to regulatory restraints. The regulatory takings inquiry for this
research is specifically limited to decisions involving environmental regulations
effecting private property and the Courts interpretation of the regulatory takings

Operational Definitions of Activism and Restraint
In order to ascertain the existence of a pattern of conservatism by the
courts in environmental law, this research required the construction of operational
definitions of activism and restraint.14 The term judicial activism has been
used throughout political literature, and its use has varied widely. The most
succinct description of judicial activism is a decision that one does not like.15
More appropriately, a court is activist when its decisions conflict with other
political policy-makers.16 The concepts of judicial activism and restraint are found
within the political scholarship addressing judicial behavior, which concedes that
the terms activism and restraint are difficult to define. However, the
significance of activism and restraint is important in helping to define the larger
institutional role of the judiciary in the context of American governance. In
particular, review of Court decisions to determine the usage of activism or
restraint allow for analysis of the decision on the merits, as well as providing an
external platform to discern shifts injudicial behavior that are relevant in
assessing directions of environmental regulation and future jurisprudence.
To account for the difficulty in identifying a single resolute definition of
activism, a set of principles that have been used by other scholars to discern levels
of activism in various facets of common law will be used.17 These principles of
activism are categorized as follows:
{\)Counter-Majoritarian Activism: the reluctance of the courts to
defer to the decisions of the democratically elected branches;
(2) Non-Originalist Activism: the departure of the court from
original interpretations of statutory text or legislative history
contemplated in its decision;
(3) Precedential Activism: the failure of the courts to defer to
judicial precedent;

(4) Jurisdictional Activism: the failure of the courts to adhere to
jurisdictional limits on their own power;
(5) Judicial creativity: the creation of new theories and rights in
constitutional doctrine;
(6) Remedial Activism: the use of judicial power to impose
ongoing affirmative obligations on the other branches of
government or to take governmental institutions under ongoing
judicial supervision as a part of a judicially imposed remedy.1
These principles will be used in application toward each topic of interest to
discern a recognizable trend and are not assumed to be mutually exclusive in their
use by the Court.
The concept of restraint may appear to be the antonym of activism.
However, the literature on the subject of restraint suggests that this is not the case.
Instead, the concept of judicial conservatism19 is most comfortably assessed under
a typology that subsumes the notions of originalism, textualism, and restraint into
the theory of judicial conservatism. This conceptualization is important in the
judicial context because it takes into account value choices, be they personal or
constitutionally embedded ones, which arise injudicial opinions regarding the
In terms of environmental jurisprudence, its concomitant connection to
political change and preference, and value choices associated therewith, the
Burkean model of conservatism provides the platform for analysis of judicial
conservatism. The conservative imperative, via etymological derivation and
political history, is to preserve the basic organizational structure that already
exists.20 The following are critical elements of Burkean conservatism:

(1) a distrust of human reason and a consequent rejection of
abstract political theory;
(2) a preference for tradition and prescriptive wisdom passed down
from prior generations and revealed in the structure of existing
(3) a characterization of the political community as based on an
organic social contract that confers on individuals not only rights
but also duties to the community;
(4) an acknowledgement of the possibility and even necessity of
evolutionary change in institutions over time; and
(5) a belief in the natural aristocracy-a system of mixed
government that guarantees a role for elite decision-makers
characterized by education, good character, and institutional
This typology and the principles of activism are fused together in this research in
order to identify whether a pattern of activism or restraint exists in environmental
A very important aside is appropriate here to justify and support the
integration of the principles of activism and the Burkean theory of restraint. This
research does not imply that either activism or restraint exercised by the courts
necessarily causes environmental protection to occur. In other words, no
causation element is present. This distinction is important because of the generic
assumption that an active judiciary will lead to better protection of the
environment. As the next portion of this research demonstrates, the foundations
that underlie environmental jurisprudence and the initial environmental cases do
not follow such a linear equation. Rather, as the Scenic Hudson decision
demonstrates, infra, the Court can be activist but fail to protect the environment in
any real sense under its holding. The use of both the activism principles and
Burkean model support this delimitation as the constraint in this research to

discern a trend and not causation between the Courts use of activism/restraint and
environmental protection.
The significance of this research lies in defining the Supreme Courts role
as a policy-making court influencing present and future directions of
environmental regulation. The Courts treatment of environmental law and
regulation with either activism or restraint tends to carry over into implementing
agencies that shift their own mechanisms and procedures to reflect the decision of
the Court. Consequently, the recognition of any trend injudicial activity and/or
restraint will prove useful in determining lateral effects upon environmental
management in the future. In addition, the research also served to identify
potential anomalies and/or exceptions that do not fall within common research
boundaries in explaining the common trend, if any, and those connections to
lateral effects that remain unanswered by the level of court activism.
Time Frame and Other Constraints
The methodology employed other restraints aside from those discussed,
supra, with the intent to narrow the research to a manageable subset of data that
would provide meaningful analysis. In addition to the contextual limits imposed
on each topic of interest, these topics will also be divided into two distinct time
frames of 1970-1980, and 1980 to the present, respectively. This temporal
division is attributed to common perception that the court began as aggressively
activist arbiters in environmental regulation, signaled retrenchment in the early
1980s, and markedly retreated to a more institutionally restrained poise beginning
around 1990 Finally, the research was limited to issues pertaining to Supreme
Court cases concerning an environmental statute, recognizing the interconnection

of statutory and common law that is so interrelated in environmental

Early Environmental Policy and the Rise of the
Regulatory State
Early environmental policies proved central to the formation of a federal
government. Prior to the inception of the Constitution, public lands were
recognized as the only tangible asset of the then weak federal government after
the American Revolution. Federal acquisition of lands ceded by the states to
repay war debts signaled a more prominent role for the federal government,
establishing the precedent for national ownership and management of a federal
public land system.24 However, natural resources and environment as a whole
were ancillary to the Framers greater concerns of representation through
governance and the balance of power between federal and state governments.25
While environmental policy played a central role in the formation of a federal
government, the modem evolution of environmental policy developed in common
law jurisprudence and under Constitutional doctrines well established in other
spheres of public welfare.
The most important sources of constitutional authority for environmental
policies are the Commerce26, Property27, and federal Supremacy Clauses28 of the
Constitution. Federal authority over environmental policies is also constrained by
the limitations of the Fourth, Fifth, and Fourteenth Amendments of the
Constitution.29 The clauses provide the constitutional authority of the federal
government over interstate commerce and property, whose jurisdiction is

accorded the supreme law of the land under the Supremacy Clause. The
Amendments of the Constitution restrict environmental regulation and law from
intruding into individual rights and personal rights of property by administrative
agencies without due process of law.
The authority to create administrative agencies is thought to be derived
from the Necessary and Proper Clause of the Constitution.30 The political
institutionalization of administrative agencies occurred in response to the
perception of the ill effects of an unregulated marketplace. Regulated entities
sought to limit regulation through the courts, and common law remedies were
fashioned in response to such litigation. The Great Depression and subsequent
New Deal31 legislation fueled the creation of the traditional model of
administrative law.32 In the 1930s regulatory agencies were transformed from
purely corrective entities into those with primary responsibilities in addressing
social and political aspects of the floundering economy.
That national regulation was anathema to the original laissez-faire
protectionism of the marketplace in the routine of judicial review was reflected by
the judiciarys reaction to New Deal legislation. The judiciary was revered as the
mainstay resource for protection of contract and property rights. Faced with the
threat of judicial invalidation of New Deal legislation, President Roosevelt
introduced to Congress the now infamous court-packing plan, which would
increase the number of Justices on the Court from nine to fourteen.34 Fearing the
consequences of appointing an instant majority, the Court appeared to retreat from
the constitutional challenges that the New Deal created. Sharp criticism that New
Deal legislation impinged upon traditional state and federal balances of power
came to a close with the seminal case of NLRB v. Jones & Laughlin Steel Co.,
infra, marking a pivotal moment injudicial history.

The passage of the Administrative Procedure Act of 1946 (APA)
represented a compromise between critics of regulatory institutions and
proponents of the New Deal and its effects on federal and state authority. The
intent of the APA was to prevent the exercise of agency preemptory power
through required procedures and judicial control of the agency process.36
Commensurate with the approval of the APA as the governing statute of
administrative policy-making was the implicit endorsement of judicial control
over the administrative state and its processes via judicial review of statutory
The Impact of Environmental Law on the Regulatory State
and Federalism: A Brief History
Environmental law and regulation was largely a product of common law
principles prior to the enactment of the APA.38 Environmental management was
left largely to state and local governments commensurate with traditional common
law notions of public nuisance and abatement.39 However, state ordinances and
control mechanisms lacked coordination, and failed to assess specific directions
for polluting industries with respect to public health concerns.40 The passage of
the APA coincided with post-World War II federal encouragement to the states to
adopt pollution control measures, with federal responsibility extending only to
research and funding.41 Early research discovered the transboundary character of
air pollution and other environmental media, indicating that federal intervention
might be necessary. In 1963, Congress passed the early version of the Clean Air
Act42, recognizing the need for federal involvement in interstate air pollution

Critical junctures in social, political and judicial streams of influence
culminated in the early 1960s to produce what is regarded as the rise of the
modem environmental movement. First, in the wake of the New Deal, the
judiciary appeared to acquiesce to the regulatory state. At every level the courts
began to expand those protections afforded under due process, equal protection,
and other provisions under the Bill of Rights to groups previously unprotected
under the judiciarys laissez-faire approach to regulation in the marketplace.44
The addition of the regulatory state as an enforcement mechanism for public
welfare effectively shifted governance from the previous bipolar paradigm of
markets and regulatory agencies towards a pluralistic, multi-centric model that
included citizens as a major component in administrative rulemaking processes.45
Finally, the social awareness of the gravity of environmental harm in the 1960s
grew exponentially as a result of cultural undercurrents of Rachel Carsons Silent
Spring.46 Couched in an argument against the use of the pesticide DDT on crops,
Silent Spring set the tone for political movements concerning environmental
Early implications of environmental prominence in the public sphere arose
with the Second Circuits opinion in Scenic Hudson Preservation Conference v.
Federal Power Commission (Storm King).4* The Court of Appeals for the
Second Circuit held that under the law of standing, an aggrieved party under the
case-or-controversy requirement of Article III was not required to assert a
personal economic interest.49 Finding that the Federal Power Act protected
economic as well as non-economic interests, and in light of the FPCs
acknowledgement that the area involved is one of unique scenic beauty, the court
held that Scenic Hudson had satisfied the case-or-controversy requirement of
Article III and therefore had standing.50

Storm King represented a major milestone in environmental law with
respect to citizen standing and participation in administrative processes.51 During
the 1960s it became increasingly clear that state regulation had failed to
adequately address pollution due to variations in permitting structure, standards,
and enforcement. Out of these concerns came the impetus to federalize
environmental protection and regulation. This was coupled with an intensifying
public appreciation for outdoor recreation and concerns over environmental
effects of public works projects like Storm King. Congress responded with the
passage of legislation reflecting those public concerns.53 This flurry of legislation
marked the beginning of the environmental legislative explosion of the 1970s,
initiated by the landmark National Environmental Policy Act of 1969.54
Throughout the 1970s, Congress passed a multitude of environmental legislation55
replacing cursory federal involvement in environmental issues with
comprehensive regulatory schemes designed to reach lofty goals of rehabilitation
and prevention of further environmental degradation. Federalization of
environmental regulation culminated with the creation of the Environmental
Protection Agency (EPA) in 1970 by President Nixons Executive Order.56
The structure and capability of the environmental regulatory state
developed through the series of enabling Acts by Congress throughout the 1970s.
Judicial response to the expanding capacity of regulatory agencies was arguably
favorable following Storm King. However, the Court signaled that administrative
authority was not without limits with the 1971 decision of Citizens to Preserve
Overton Park v. Volpe, infra.51 The 1980s witnessed a restructure and refinement
of original legislation with the intent of alleviating problems associated with
regulatory implementation. Those fundamental environmental acts subject to
congressional reauthorization were often amended and improved.58 Innovations

in management techniques surfaced as in the Emergency Right-to-Know Act59
and the creation of the Toxics Release Inventory. The amendments to the Clean
Air Act in 1990 experimented with the economic concept of emissions-trading
permits touted by economists as a more efficient means of achieving ambient air
quality standards.60
These innovations and environmental legislation and regulation in general
suffered significant political backlash beginning in 1991 when Republicans
gained control of Congress. Regulatory recoil and reinvention occurred within
this stage of environmental protection history, as a conservative and skeptical
Congress attempted to scale back large environmental regulatory programs.61 The
passage of the Unfunded Mandates Act of 199562 curtailed imposition of
regulatory programs without concomitant funding provided by legislative
approval. Appropriations riders exacerbated protection efforts by preventing
listing of endangered species and suspending environmental safeguards for timber
harvesting on federal lands.63 Pro-business interests continued the trend in
regulatory restraint by insulating small businesses from regulation with the
passage of the Small Business Regulatory Enforcement Fairness Act of 1996.64
In efforts to ameliorate the apparent recoil from environmental regulation, the
Clinton administration launched the Reinventing Regulation initiative that sought
to restructure existing environmental (and other) regulatory schemes imbuing
greater flexibility and efficiency while reducing the costs of the programs.65
Commerce Clause Jurisprudence
Article I sets forth the enumerated legislative powers of Congress.66 The
Courts has consistently held that federal legislation must be based on powers
granted to the federal government in the Constitution.67 The Commerce Clause

sets forth the specific powers of the federal government, including the right of the
federal government to regulate Commerce with foreign Nations, and among the
several States, and with the Indian tribes. The authority to regulate interstate
commerce establishes profound implications of superior power of the federal
government, and continues to be one of the most controversial sources of federal
authority.68 Congress originally used the Commerce Clause to limit state
legislation that appeared to threaten or interfere with interstate commerce.69 The
United States Supreme Court first assessed the limits of this authority in Gibbons
v. Ogden defining and interpreting the power of the commerce clause to include
the power to regulate... to prescribe the rule by which commerce is to be
In the 1930s the Court responded to the challenge of determining the outer
limits of federal commerce clause power with delineations of formalistic tests for
interstate commerce. These tests relied upon distinctions regarding the nature of
commerce activity (manufacture and commerce in Kidd v. Pearson and United
States v. E. C. Knight Co.74), the location of such activities (introducing the
distinction between local and national activities of commerce in Cooley v.
Board of Wardens75), and the effect of an activity on interstate commerce (
limiting congressional power to regulate those activities having a direct effect on
interstate commerce in A.LA. Schechter Poultry Corp. v. United States).76
While the Supreme Court sustained reliance on the distinction between
local and national characteristics of commerce in Carter v. Carter Coal Co.77, the
court acknowledged that such a distinction is not formal, but substantial in the
highest degree.78 The appropriate Commerce Clause query for the Court in
Carter focused on the relationship between the activity or condition and the
effect. Following Carter, jurisprudence of the 1930s focused Commerce Clause

interpretation and subsequent authority on the examination of the degree of the
actual impact of intrastate activity on interstate commerce.80
The seminal case of NLRB v. Jones & Laughlin Steel Co. affirmed the
substantial relationship test of commerce.81 In upholding the application of the
National Labor Relations Act (NLRA) to Laughlin Steel Co.82, the Court held that
activities may be intrastate in character when separately considered, if they have
such a close and substantial relation to interstate commerce that their control is
essential or appropriate to protect that commerce from burdens and
obstructions.83 Similarly, the Court found in United States v. Darby that the
power of Congress to regulate interstate commerce extends to the regulation [of]
intrastate activities which have a substantial effect on the commerce or the
exercise of the Congress over it.84
This seemingly expansive interpretation of Commerce clause authority
continued throughout the implementation of New Deal legislation and the rise of
the regulatory state, discussed supra, structured to deliver the mandates of the
New Deal. Wickard v. Filburn85 affirmed the use of the substantial effects
test. In Wickard, the Supreme Court found that the items produced for personal
consumption may still fall within the purview of federal regulation under
commerce clause authority.87 The court explained the foundations of its holding
in the following excerpt:
Questions of the power of Congress are not to be decided by
reference to any formula which would give controlling force to
nomenclature such as production and indirect and foreclose
consideration of the actual effects of the activity in question upon
interstate commerce. [Once] an economic measure of the reach of
the power granted to Congress in Commerce Clause is accepted,
questions of federal power cannot be decided simply by finding the
activity in question to be production, nor can consideration of its
economic effects be foreclosed by calling them direct. Even if

appellees activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by
Congress if it exerts a substantial economic effect on interstate
commerce and this irrespective of whether such effect is what
might at some earlier time have been defined as direct or
This rationalization by the court provided the foundation for the cumulative
effects doctrine of commerce clause jurisprudence. If the activity taken in the
aggregate substantially affected interstate commerce, the activity was found
within the authority of Congress to regulate under the cumulative effects
The foundations for Commerce Clause authority set in the early twentieth
century endured for almost sixty years.90 Congress utilized its apparent
commerce clause authority to address other national issues such as civil rights and
the environment in the latter half of the century. Of particular import to the
constitutional confirmation of environmental regulation was the 1981 decision of
Hodel v. Virginia Surface Mining & Reclamation Association, Inc.91 Upholding
the Surface Mining Control and Reclamation Act of 1977, the Court articulated
that the
task of a court that is asked to determine whether a particular
exercise of congressional power is valid under the Commerce
Clause is relatively narrow. The Court must defer to a
congressional finding that a regulated activity affects interstate
commerce, if there is any rational basis for such a finding.92
An examination of the legislative history of the passage of the Act convinced the
Court that a rational basis for finding that regulation of the activities of surface

mining and reclamation affected interstate commerce, and the Court upheld the
Act under the Commerce Clause.
Near the end of the twentieth century, a perceived shift in the
interpretation of commerce clause authority appeared in the 1992 decision of New
Yorkv. United States.9* The Court was asked to decide whether the take title
provision of the Low-Level Radioactive Waste Policy Amendments Act of 198595
fell within the ambit of congressional power under the Commerce clause. The
Court invalidated the provision.96 Specifically, the Court stated that the
Constitution enables the Federal Government to preempt state
regulations contrary to federal interests, and it permits the federal
government to hold out incentives to States as a means of
encouraging them to adopt suggested regulatory schemes... It does
not, however, authorize Congress simply to direct the States to
provide for the disposal of the radioactive waste generated within
its borders.97
New York curbed the ability of Congress under the Commerce Clause to direct the
regulation of radioactive waste consistent with federal mandate, speaking directly
to the balance of state and federal power under constitutional doctrine. This
decision reflected the observation that few judicially enforced checks on the
commerce power existed at the time of New York. This foreboding
observation came only four years prior to the landmark decision of United States
v. Lopez", the first of three decisions from the Court shaping contemporary
commerce clause jurisprudence in general and its application in environmental
In Lopez, the Court considered a constitutional challenge to the Gun-Free
School Zones Act of 1990.100 In a 5-4101 decision, the Act was struck down as
exceeding the powers afforded to Congress by the Commerce Clause seemingly

restricting those powers as previously enunciated by earlier Supreme Court
jurisprudence regarding the extent of commerce clause authority. Most
importantly, the Court imposed a new limitation on federal commerce authority,
restricting it to the regulation of activities that are strictly economic in nature.
103 Under precedent and the structure of Schechter, Wickard, Darby, and
Laughlin Steel, the Lopez court delineated three areas which Congress was
entitled to regulate under the Commerce Clause:
Consistent with this structure, we have identified three broad
categories of activity that Congress may regulate under its
commerce power. First, Congress may regulate the use of
channels of interstate commerce. Second, Congress is empowered
to keep the channels of interstate commerce free from immoral and
injurious uses...Finally, Congress commerce clause authority
includes the power to regulate those activities having a substantial
relation to interstate commerce [citations omitted].1 4
The Court justified the categorization of federal power in noting that the
Constitution... withhold[s] from Congress a plenary police power that would
authorize enactment of every type of legislation.105 The Court revived the
direct/indirect effects considerations of Carter, and reasserted the local/national
distinctions of Schecter.106
The Supreme Court continued the restriction of Commerce Clause
authority with United States v. Morrison.107 The Court invalidated the portion of
the Violence Against Women Act of 1994 in question, finding that gender-
motivated violence is not an economic activity and consequently outside the
purview the Commerce under Lopez.108 Recognizing that Commerce Clause
jurisprudence has changed over the course of the nations history, only those
activities found to be economic in nature were upheld under the Commerce
clause.109 The Court disposed of legislative and other findings reflecting the

overall effect of violence against women in the aggregate principles of Wickard
by recognizing that all legislation upheld under Wickard was of an apparent
commercial character.110
Perhaps the case most indicative of the Courts intended restriction of
Commerce Clause authority in environmental regulation was Solid Waste Agency
of Northern Cook County v. United States Army Corps of Engineers SWANNC).111
The Court was asked to consider whether the Corps exceeded its authority under
the Clean Water Act in promulgating the Migratory Bird Rule (MBR).112
Following the foundation laid by Lopez and Morrison, the Court repeated its
concern that the judiciary should not tolerate federal encroachment upon a
traditional state power. More importantly, the Court declined to decide
whether the MBR violated the commerce clause, simply stating that where an
otherwise acceptable construction of [a] statute will raise serious constitutional
problems, this court will construe the statute to avoid such problems, unless such
a construction is plainly contrary to the intent of Congress.114
SWANCC is remarkable in Commerce Clause jurisprudence and important
for future directions of environmental management as one of three seminal
opinions that changed the landscape of commerce clause authority of Congress.
115 SWANCC implicitly validated federal regulation of activities that
substantially affect interstate commerce, the main vein of support to existing
environmental laws and subsequent regulatory schemes and federal environmental
management. SWANCC upheld the aggregation principle announced in Wickard,
supra, which holds that if the activity taken in the aggregate substantially affects
interstate commerce it is within the authority of Congress to regulate under the
cumulative effects doctrine.116 The continuation of the aggregation principle is
important to environmental regulation because while activities prescribed on

environmental are commercial in nature, the objects of environmental protection
tend to have little to do with economics or commerce.1,7 Both of these maxims
play a central role in the survival of environmental statutes from constitutional
challenges and are integrally connected to the considerations of commerce clause
1 1 o
jurisprudence as outlined above.

The scope and degree of judicial deference to agency action has evolved
alongside the formulation and entrenchment of the administrative state into
American governance. The crucial question of administrative law is how, and
how much, the court will scrutinize what an agency has done.119 The structural
restraints of judicial review as applied in agency decision-making are primarily
defined by the judicial review provisions of the APA. Most federal
environmental statutes supplement the APA with authorization within the statute
itself as to what may be reviewed and how to obtain judicial review.120
Assuming that the challenging parties meet the preliminary procedural
requirements of exhaustion of administrative remedies, ripeness, standing, and
reviewability, parties are entitled to challenge final agency action unless
committed to agency discretion by law.121 The nature and scope of judicial
review is dependent upon the method by which final agency action is achieved,
via formal or informal rulemaking procedures as established under the APA.122
This portion of the research focuses on judicial review of challenges to agency
interpretation of statutory law in formulating regulations under informal
Stages of Judicial Deference
Judicial deference to informal agency action experienced three
developmental stages. In this section, those stages are examined to demonstrate
how the Court fashioned standards of review that could incorporate a preference

for informal agency action and the Courts continuing role of oversight over the
processes of the administrative state.
Initial legal notions regarding the level judicial deference preceded the rise
of environmental regulation, and were fashioned by the 1944 decision of
Skidmore v. Swift & Co.123 Skidmore introduced the standard of the sliding-scale
test of deference to agency decision-making:
We consider the rulings, interpretations and opinions of the
Administrator under this Act, while not controlling upon the courts
by reason of their authority, do constitute a body of experience and
informed judgment to which courts and litigants may properly
resort for guidance. The weight of such a judgment in a particular
case will depend upon the thoroughness evident in its
considerations, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give
it power to persuade, if lacking power to control.124
The Skidmore test of deference drew considerable critique because it implied that
the lower courts held considerable discretion in developing what level of
deference to give an agency. However, judicial review was limited to the APA
provisions for informal agency action.
Informal rulemaking was encouraged as the appropriate method for
administrative processes in the Skidmore standard of judicial review. Informal
rulemaking appeared less cumbersome that those of formal rulemaking,
essentially an adjudication process. Use of informal procedures did not require the
development of a record. Judicial review of an agency action was limited. A
rule was sustained if it did not transgress relevant statutory directives or if the rule
was rational and supportable by some set of facts that agencies alleged to exist.127
However, these methods threatened to extinguish meaningful review of agency
action because no evidentiary record existed.

For the next forty years, the application of Skidmore deference
incorporated various attributes of the sliding scale test in determining whether to
accord deference to agency action. The result was an increase in confusion and
fragmentation within and between the federal appellate and district courts with
regard to the level of judicial deference accorded to informal agency action. The
obvious need for a more unifying standard was realized with the second
developmental stage under the Supreme Courts 1984 decision in Chevron U.S.A.,
Inc. v. National Resources Defense Council, Inc}29 At issue in Chevron was the
EPAs regulatory interpretation of single stationary source under the Clean Air
Act (CAA). The EPA bubble effect regulation allowed regulated entities to
apply the regulation on a plant-wide basis, permitting modifications to the source
if the overall emissions did not increase. In holding that the EPAs
interpretation of the statute as applied to the regulation was reasonable, the Court
set forth another standard for judicial review of agency decision-making:
If... the court determines Congress has not directly addressed the
precise question at issue, the court does not simply impose its own
construction of the statute.. .If the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agencys answer is based on a permissible
construction of the statute.131
If a court reaches the second prong of the Chevron test, it effectively reads a gap
1 ll
in a statute to constitute an implied delegation of authority by Congress.
Consequently, an agency's construction of a statute it is charged with enforcing
is entitled to deference if it is reasonable and not in conflict with the expressed
intent of Congress. This level of deference differed from Skidmore by
expressly providing for the determination of due deference accorded to agency

action, instead of allowing judicial consideration of factors under the sliding-scale
The conflicting deference levels of Skidmore and Chevron led to vigorous
debate in the aftermath of the Chevron decision as to whether Skidmore was
defunct in the operation of judicial review. Of particular importance was whether
the impact of the Chevron decision on informal rulemaking outcomes eliminated
substantial review of agency action in that arena, and consequently the
opportunity for the judiciary to review regulatory validity under enabling
legislation. Commensurate with this concern, the Skidmore and Chevron tests of
deference were interspersed throughout judicial review without any real definitive
statement as to which test was to be employed by the courts under either formal or
informal processes.134 After a period of fifteen years, the Supreme Court
revisited the deference debate, potentially shifting judicial deference to agency
action away from expansive Chevron considerations, reminiscent of judicial
review prior to the New Deal.
At the turn of the twentieth Century, the Court signaled a shift in judicial
deference with its two opinions of Christensen v. Harris County135 and United
States v. Mead Corp.136 In Christensen, the Supreme Court reiterated concerns
with the lack of procedural safeguards in informal processes, rejecting application
of the Chevron test. The court articulated its concerns with the policy
Interpretations such as those opinion letters- like interpretations
contained in policy statements, agency manuals, and enforcement
guidelines, all of which lack the force of law- do not warrant
Chevron deference.137

In finding that opinion-type policy statements lacked Chevron deference, the
Court applied the Skidmore sliding scale test and rejected the interpretation by the
Department of Labor.
Christensen confused the application of the Chevron and Skidmore tests.
In his concurring opinion, Justice Scalia noted that the majoritys opinion lacked
any real recognition of deference. Further, Scalia remarked that Chevron
established a presumption that ambiguities in statutory interpretation were to be
resolved within the bounds of reasonable interpretation by the administering
agency.138 The Court departed from this presumption and decided the issue on a
purely judicial interpretation, implying that Skidmore deference may mean no
deference at all, subject to judicial determination that the policy in question lacks
the power to control, if not the power to persuade.139 This usage of Skidmore
left open the question of whether the Court was precluding Chevron deference to
informal agency action. The Court answered this question the next year in United
States v. Mead Corp.m
The Mead court attempted to assess the ambiguity of Chevron application
to informal agency action.141 Vacating and remanding the holding of the Federal
Circuit Court of Appeals, the Court announced another test of deference in
attempting to reach a middle ground between Chevron deference and Skidmore
persuasiveness. According to Mead,
administrative implementation of a particular statutory provision
qualifies for Chevron deference when it appears that Congress
delegated authority to the agency generally to make rules carrying
the force of law, and that the agency interpretation claiming
deference was promulgated in exercise of that authority.142
This statement sets forth the two-pronged Mead test for agency deference on
judicial review:

1. The reviewing court must determine whether Congress has
granted the agency power to act with the force of law
generally; if such authority is lacking, then Chevron will not
2. If the court finds that the agency has been delegated authority
to act with the force of law generally, the next inquiry for the
courts is whether the agency is acting with the force of law in
the particular act in question (or whether the agency is
statutorily entitled to impose this regulation under informal
Under Mead, the Court incorporated both Chevron and Skidmore tests of
deference, making judicial review of informal agency action subject to a
transformed test from principles developed throughout the course of
administrative law.
Application of Deference in the Age of Environmentalism
The standards of review guiding judicial deference to informal agency
action are applied in this section to environmental decisions of the Supreme Court
that address the scope of review. This collection of cases demonstrates that the
power of judicial review reaches many facets of environmental regulation.
Assuming that all procedural requirements of ripeness, exhaustion, and standing
are met, the authority of judicial review can affect future interpretations of
statutory language and commensurate implementing action by responsible
agencies. In addition, such influence to actively transform statutory interpretation
may be both the salvation and the damnation for environmental jurisprudence,
depending upon how the Court undertakes its analysis of the case at hand. Based
upon the standards as they have evolved over the course of time in environmental

jurisprudence as described in the previous section, the following cases provide the
foundation for application of the methodology to the topic.
Environmentalism and Judicial Deference (1970-1978)
The court began the infusion of informal procedures with the
environmental regulatory state by developing the standard of review in informal
rulemaking proceedings in the 1971 decision of Citizens to Protect Overton Park
v. Volpe.144 Appellants argued that the Secretary of Transportation violated §4(f)
of the National Highway Transportation Act145 by failing to issue an opinion in
finding that the construction of a highway through Overton Park was the only
feasible alternative. The Court agreed, setting forth the basic structure for
review of informal rulemaking procedure as follows:
Section 706(2)(A) [of the APA] requires a finding that the actual
choice made was not "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law." To make this finding the
court must consider whether the decision was based on a
consideration of the relevant factors and whether there has been a
clear error of judgment. Although this inquiry into the facts is to be
searching and careful, the ultimate standard of review is a narrow
one. The court is not empowered to substitute its judgment for that
of the agency.146
Petitioners contention that de novo review of the Secretarys decision was
mandated under the APA was rejected by the court, finding that such review is
only warranted when administrative proceedings are adjudicatory in nature and
the agencys fact-finding is inadequate.147 The substantial evidence test was
also found to be inapplicable under the same rationale.148 The Courts affirmation
of arbitrary and capricious review afforded some substantive review by the
courts of the agencys decision, indicating a shift injudicial posture towards

greater scrutiny of agency actions and the underlying rationales for agency
The Courts quiet acquiescence to petitioners threshold showings of the
Secretarys lack of consideration of alternatives suggested that the Court would
scrutinize informal agency action under the hard look doctrine. The hard
look doctrine states that a court should overturn certain decisions
only if the court becomes aware, especially from a combination of
danger signals, that the agency has not really taken a hard look at
the salient problems, and has not genuinely engaged in reasoned
Overton Park suggested that administrative regulatory proceedings under
informal rulemaking guidelines of the APA were to be extended to those issues in
environmental law that lacked any rational basis from the administering agency.
The case is remarkable for utilizing judicial creativity activism in fashioning the
doctrine, allowing greater judicial scrutiny of informal proceedings. Overton
Park also exhibited restraint by restricting its own jurisdiction in noting that
review is limited to reviewing the nature of the agency action, rather than
substituting its judgment for that of the agency.151
Environmental jurisprudence concerning the scope of judicial review in
the 1970s focused on the development of the record in informal rulemaking.152
The Court continued to flesh out the relationship between the courts and
administrative informal agency action using the hard look doctrine. Overton
held that implementation of environmental directives via regulation was subject to
a thorough, probing, in-depth review of agency action, while avoiding
substitution of judgment on the merits of the agencys decision.154 In the years
that followed Overton, appellate courts began to fashion the scope of review in
concert with their own respective interpretations of Overton, generating confusion

with respect to how the judiciary fit in to the fabric of regulatory
implementation.155 Consequently, it appeared that the appellate courts were
instituting substantive and procedural requirements in addition to those found in
the APA.
Overton Park and its progeny provided the basis for deference to agency
action in the early 1970s. As the environmental regulatory framework was
constructed by Congress throughout the mid-1970s, the mandates of those laws
began to interact with normal courses of business for regulated entities. The 1976
decision in Kleppe v. Sierra Club addressed the timing and extent of an
Environmental Impact Statement (EIS) under the National Environmental Policy
Act (NEPA).156 At issue was the interpretation of §102(2)(C) of NEPA requiring
the Department of Interior to develop a regional programmatic EIS of the
Northern Great Plains Region.157 In holding that a comprehensive EIS was not
contemplated by NEPA, the Court deferred to the Interior Department, finding no
authority of the court to determine when the preparation of an EIS is necessary
under the Act. The result of the Kleppe decision was entrust an agency with
determining when the preparation of an EIS is appropriate, restricting interference
by the courts to determining only whether the agency acted arbitrarily or
capriciously. This apparent grant of authority to agency discretion in assessing
the necessity of an EIS reflected judicial restraint, maintaining the status quo and
ensuring trust within existing institutions.
The standard and scope of judicial review under the hard look doctrine
and levels of deference under Skidmore produced considerable confusion in APA
§706 review. The Supreme Court intervened in 1978 with the landmark case of
Vermont Yankee Nuclear Power Corp v. Natural Resources Defense Council.159
The pertinent issue in Vermont Yankee was the invalidation of the fuel cycle

rule by the D.C. Circuit as a result of the inadequacy of the procedures in the
rulemaking process. The Court was asked to determine whether the procedures
afforded to applicants requesting a nuclear reactor operating license during the
rulemaking proceedings were inadequate as contained in the Atomic Energy
Power Act160 and the APA.161 The Court reigned in the apparent expansive
reading of APA review procedures and Overton through its rationalization of its
limits of review in the following excerpt:
If courts continually review agency proceedings to determine
whether the agency employed procedures which were, in the
courts opinion, perfectly tailored to reach what the court perceives
to be the best or correct result, judicial review would be totally
unpredictable. And the agencies, operating under this vague
injunction to employ the best procedures facing the threat of
reversal if they did not, would undoubtedly adopt full adjudicatory
procedures in every instance. Not only would this totally disrupt
the statutory scheme... but all the advantages of informal
rulemaking would be totally lost.162
Finding that the APA established the maximum procedural requirements
necessary to conduct viable informal rulemaking processes, the Court more
narrowly tailored judicial involvement in regulatory processes.
Vermont Yankee represented a shift towards greater agency deference in
procedural preferences in conducting decision-making processes. However,
this shift towards favoring deference to agency action appeared limited to the
procedural aspects of decision-making. Judicial restraint is evident in the Courts
expressed desire to normalize judicial review and simultaneously endorse the less
cumbersome decision-making processes of informal procedures. Additionally,
the Court exercised restraint by curbing any further inclusion of procedural
requirements for judicial review other than those under §706 of the APA.

Vermont Yankee also affirmed the limited role of the court as established by early
precedent addressing informal action challenges.164
Vermont Yankee prefaced one of the most celebrated cases in
environmental history, Tennessee Valley Authority v. Hill.165 TV A addressed the
interpretation of the ESA as applied to the Tellico Dam, a hydroelectric project
that had almost reached completion before the discovery of the snail darter, a
small fish whose population faced absolute eradication by the operation of the
dam.166 The Court affirmed the holding of the Sixth Circuit Court of Appeals for
the Sixth Circuit.167 Finding that the plain intent of the statute was to halt and
reverse the trend towards species extinction, the Court explicitly affirmed the
mandate of §7 of the ESA as in direct conflict with the operation of the Tellico
Dam.168 The Court reasoned that the intent of Congress as set forth in the ESA
required it to comply with the nature of American governance, stating that
[Ojnce Congress, exercising its delegated powers, has decided the order of
priorities ..., it is for the Executive to administer the laws and for the court to
enforce them when enforcement is sought.169
TV A is one of the clearest rationales providing judicial affirmation of the
most controversial environmental law while relying on the principle of separation
of powers to conclude that the ESA provision in question required an injunction
to halt the operation of Tellico Dam. TVA argued that continued funding of the
Tellico project required repeal of the ESA.170 Returning to the cardinal principle
that repeals are generally disfavored, the Court rejected the requests of TVA to
repeal the statute under its premise of funding contradiction.171 This rationale
falls under one of the Burkean elements of conservatism, the preference for
tradition and prescriptive wisdom as revealed in the structure of existing
institutions. The underlying rationale of TVA by the courts confirms a restrained

poise although the purpose of the ESA was affirmed by the Court. Unfortunately,
congressional action shortly thereafter exempted Tellico from the provisions of
the ESA, and the snail darter population succumbed to the operation of Tellico.172
At the close of the 1970s, the Court had engaged in substantial review of
environmental issues. Remarkably, it appears that the Court exercised
considerable restraint with respect to the questions presented. Overton Park
appears to be the foremost opinion in exercising remedial activism in formulating
the hard look doctrine. The opinions following Overton Park emphasize
traditional notions of separation of powers and avoiding substitution of judgment
for that of the agency. These principles are adhered to in Kleppe and TV A,
emphasizing agency expertise as necessary to determine appropriate action under
legislative mandate. These initial determinations of the extent of environmental
regulation by the court provided the basis for review that would lead to the
eventual narrowing of the scope of NEPA with respect to EIS considerations and
the affirmation of the ESA as viable under the constitutionally delegated powers
of Congress. Early in the 1980s, however, the court was presented with issues
that would press the court under the traditional doctrines of the Framers that
appeared to require the reconciliation of the role of the courts and environmental
Judicial Review and Agency Deference (1980-presenf)
The development of NEPA EIS in the 1970s allowed the courts to review
the merits of agency decisions under the arbitrary and capricious standard of the
APA.173 Environmental values were injected into the analysis of NEPA
considerations, in terms of identifying costs and benefits outlined within a
particular EIS.174 In Strykers Bay Neighborhood Council v. Karlen, the Court

revisited consideration of environmental consequences in terms of preparing an
adequate EIS under NEPA.175 Returning to Vermont Yankee, the Court found that
the intent of NEPA did not caution the court to hold environmental consequences
above others m EIS considerations. In holding that the Housing and Urban
Development agency (HUD) had considered all consequences and was justified in
proceeding with the project, the Court reiterated the role of the courts in NEPA
once an agency has made a decision subject to NEPA's procedural
requirements, the only role for a court is to insure that the agency
has considered the environmental consequences; it cannot
inteiject itself within the area of discretion of the executive as to
the choice of the action to be taken.177
The court continued to preserve the status quo by exercising restraint in Strykers
Bay. Arguably, this frame of restraint by the courts may fall under the belief of a
natural aristocracy, supra, guaranteeing the role of elite decision-makers in a
mixed government to issue decisions in order to preserve institutional
Later in the year, the Court participated in the debate interpreting the
Occupational Safety and Health Act of 1970 (OSHA)178 and its application in the
promulgation of regulation limiting the exposure of workers to benzene, a known
carcinogen. Known as the Benzene decision, Industrial Union Department, AFL-
CIO v. American Petroleum Institute addressed values associated with balancing
costs and benefits in determining the threshold level of benzene exposure.179
After examining the factual history and record evidence of adverse effects
attributed to benzene, the court concluded that the enforcement of the benzene
standard as issued by the Secretary of the Labor was not required because the
Secretary had failed to provide appropriate evidence.180

In several respects, the Benzene decision applied several principles of
judicial activism in its outcome and rationale. First, the integration of two
provisions of OSHA181 directing the Secretary of Labor to promulgate health and
safety standards for harmful chemicals used in manufacturing and production
required the court to engage in counter-majoritarian activism. Rather than defer
to the congressional intent of OSHA in determining the meaning of these two
provisions in concert, the court actively fashioned its own interpretation. The
Court continued this activism with its repudiation of the governments arguments,
stating that acquiescence to the governments interpretation would effectively
constitute an unconstitutional delegation of power. Second, the Benzene court
engaged in remedial activism via its interpretation of the meaning of significant
harm. The court imposed the burden of substantial evidence on the agency,
rather than the regulated entity, to demonstrate that exposure to levels of benzene
will not significantly harm workers. Imposing this duty contrary to normal
evidentiary principles associated with toxic substance regulation implemented a
deviation in evidentiary principles upon the Secretary.
That the court engaged in substantial activism did not go unnoticed by the
justices that either concurred or dissented in Benzene.184 The gravity of the issue
before the court was recognized by Justice Rehnquist, stating that the
governmental body best suited and most obligated to make the choice.. .has
improperly delegated that choice to the Secretary of Labor and, derivatively, to
this Court. Additionally, Justice Marshalls dissent accused the majority that
it was more interested in the consequences of its decision than in discerning the
intention of Congress.186 Marshall argued that a reviewing court must remember
that the [agency] is making predictions, within its area of special expertise, at the
frontiers of science. When examining this kind of scientific determination, a

1 87
reviewing court must be at its most deferential. The division of the court
reflects the level of activism utilized by the plurality, chastised by Justice
Rehnquist who believed that such matters prodded the government towards
cooperative coordination under the principles of delegation of powers, and
berated by the dissent that opposed the interpretation of the OSHA provisions
altogether as substituting its judgment for that of the agency. Ultimately, the
exposure level under OSHA regulations was set to the standard at issue in the
Safety persevered as an environmental issue in the 1983 decision in Motor
Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance
Co (State Farm).188 Reviewing the decision by the Secretary of Transportation to
revoke the requirement that all new vehicles be equipped with passive restraints,
the Court held that the Secretary had acted arbitrarily and capriciously.189 The
Court employed the hard look doctrine of Overton Park and the application of
APA review under Vermont Yankee, reasoning that while an agencys policy may
change over time, it may not summarily implement that policy without providing
a reasoned analysis.190 The Courts use of restraint is evident, renouncing any
implication that procedural requirements past those in the APA are required,
following Vermont Yankee, supra. The imposition of a reasoned analysis also
followed the precedent established by Burlington Truck Lines, Inc. v. United
States, preserving the status quo established in administrative jurisprudence prior
to State Farm.191
The Court continued to review safety concerns in Baltimore Gas &
Electric Co. v. Natural Resources Defense Council (Baltimore). Reminiscent
of Vermont Yankee, the Court addressed the use of the zero-release assumption

in the fuel cycle rule considerations of nuclear power plant licensing
procedures.193 The Court reversed the D.C. Circuit Court of Appeals, holding that
using the zero-release assumption was reasonable in licensing procedures. The
Court relied on the separation of powers argument in its reasoning:
In sum, we think that the zero-release assumptiona policy
judgment... designed for the limited purpose of individual licensing
decisionsis within the bounds of reasoned decision-making. It is
not out task to determine what decision we, as Commissioners
would have reached. Our only task is to determine whether the
[NRC] has considered the relevant factors and articulated a rational
connection between the facts found and the choice made.194
The Court explicitly acknowledged the separation of legislative branches and their
concomitant duties under statute. This preservation of tradition and arguably the
maintenance of the natural aristocracy, supra, reveal judicial restraint in
Baltimore. By adhering to this notion, along with the hard look doctrine, the
court endorsed the use of the agency interpretation of the fuel cycle rule as a
The Court utilized Chevron deference principles in 1985 in United States
v. Riverside Bayview Homes (Riverside).195 At issue in Riverside was the
jurisdiction of the Army Corps of Engineers (Corps) over wetlands adjacent to a
navigable tributary under the Clean Water Act (CWA). Reviewing the legislative
history to discern the intent of Congress, the Court unanimously held that the
Corps interpretation was entitled to Chevron deference.196 The Court relied
heavily on the legislative history in reading the CWA expansively to include
wetlands as waters of the United States despite their non-navigability
character.197 In so holding, the Court diminished the importance of navigability in
jurisdictional considerations of water quality regulation, noting the Corps

difficulty under its mandate to choose some point at which water ends and land
begins.198 This expansive interpretation suggests use of judicial creativity and
precedential activism in discounting the factor of navigability in determining
jurisdiction under the CWA. Additionally, non-originalist activism is also
apparent by the courts synthesis of legislative history to include adjacent
wetlands under the CWA definition.
The Court closed the 1980s with two connected cases involving the
interpretation of NEPA EIS requirements. At issue in Robertson v. Methow
Valley Citizens Council was the adequacy of an EIS without a mitigation plan and
the authority of the Forest Service to issue a permit without one under NEPA.199
While the Court found that the action-forcing procedures of NEPA require that
agencies to take a hard look at environmental consequences, the Act did not
impose any substantive duty to include a mitigation plan.200 The Court reversed
the Ninth Circuit Court of Appeals, holding that NEPA did not require a full
mitigation plan or a worst case analysis.201 Robertson was an exercise of
restraint by the Court in limiting the substantive requirements of NEPA to those
in the Act, similar to the holding of Vermont Yankee.
The holding of Robertson was applied in Marsh v. Oregon Natural
Resources Council.202 Marsh addressed the temporal difficulties associated with
NEPA requirements and the influence on judicial deference from the need for
scientific expertise. Interpreting the requirements of §102(2)(C) of NEPA, the
Court held that an agency must apply a rule of reason when determining
whether a post-decision supplemental EIS should be prepared when any federal
action has yet to occur.203 This enhancement of the hard look doctrine justified
the informal rulemaking process:

Administrative consideration of evidence...always creates a gap
between the time the record is closed and the time the
administrative decision is promulgated... If upon the coming down
of the order litigants might demand rehearing as a matter of law
because some new circumstance has arisen, some new trend has
been observed, or some new fact discovered, there would be little
hope that the administrative process could ever be
In one sense, the court exercised restraint in following the hard look doctrine in
reviewing NEPA and the need to prepare a supplemental EIS. However, the
adoption of the rule of reason under the hard look inquiry qualified as remedial
activism by the Court in Marsh. The court imposed an ongoing affirmative duty
on an agency that was not found under the text of NEPA but inferred from its
legislative purpose of preventing uninformed action by an agency.205
In 1995, the Court revisited the ESA in the decision of Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon.206 In Babbitt, petitioners
challenged the regulatory definition of harm to include prohibition on takings to
include significant habitat modification or degradation.207 The Court upheld the
definition as a reasonable interpretation, granting the Secretary of Interior
deference under the legislative intent of the ESA.208 Reviewing the legislative
intent, the Court recognized the broad delegation of power to the Secretary of
Interior in enforcing the mandate of the ESA:
The latitude the ESA gives the Secretary in enforcing the statute,
together with the degree of regulatory expertise necessary to its
enforcement, establishes that we own some degree of deference to
the Secretarys reasonable interpretation.209
Babbitt was an exercise injudicial restraint, preserving the intent of the ESA and
according deference to agencies under the established premise that the

requirement of expertise demands deference. The decision appeared to be a great
victory for government enforcement of the ESA. However, unforeseen habitat
modifications such as invasive species encroachment, the decline in natural fires
and habitat fragmentation by road construction contribute to the decline in
endangered species despite the sweeping provisions of the regulation at issue in
In a trio of Commerce Clause challenges, SWANCC, discussed supra in
Part II, invalidated the Migratory Bird Rule as it applied to isolated wetlands.211
SWANCC departed from Riverside, asserting precedential activism by failing to
extend the reach of jurisdiction to isolated wetlands under the Clean Water Act.
The Court justified its departure by finding that the Riverside opinion was based
largely on congressional acquiescence to the Corps interpretive regulations
asserting jurisdiction over wetlands adjacent to navigable waterways. Further,
SWANCC explained its refusal of Chevron deference on the premise that such
deference would result in significant impingement of the States traditional and
primary power over land and water use.212 This rationale is striking, because it
appears to be the first that explicitly recognized the federalism concern.
Arguably, the federalism principle may have been interposed in order to avoid the
Commerce Clause question that would raise serious constitutional problems.
The final decision of the Court in this analysis affirmed the federal/state
balance of power under the Clean Air Act (CAA) in the 2004 decision of Alaska
Department of Environmental Conservation v. EPA (Alaska).2'3 In Alaska, the
Court held that the CAA authorizes the EPA to stop construction of a major
pollutant facility when the EPA finds that a state authoritys Best Available
Control Technology (BACT) determination is unreasonable under the CAA 214

The Alaskan Department of Environmental Conservation (ADEC) issued a permit
with BACT standards omitting selective catalytic reduction (SCR) technology as
economically infeasible.215 Finding due deference to the EPAs reasonable
interpretation of its oversight role under the CAA, the Court held that EPA had
the authority rescind the state permit. While the interpretation of the statute
relied on interpretive guidelines that did not warrant deference under Christenson,
supra, the Court granted deference based on the EPAs longstanding
interpretation.217 Citing Skidmore, the court reasoned that such deference rest[s]
on a body of experience and informed judgment to which courts and litigants may
properly resort for guidance.218 This holding reaffirmed federal primacy under
the CAA statute, exercising restraint in preserving the balance between state and
federal authorities in determining BACT standards for CAA permitting.
However, coupled with the reintroduction of the federalism argument in
SWANCC, these holdings suggest that the Court will continue to explain and
justify its federal/state balance in environmental regulation in future

The entitlement to standing is one of the prerequisites to obtaining judicial
review of agency action.219 The doctrine originated with early judicial
interpretations of the constitutional requirements under Article III of the U.S.
Constitution. However, the term and concept of standing appears nowhere in
the literal text of Article III. The growth of the standing phenomenon appears to
have coincided first with the rise of the regulatory state, and second through the
burgeoning environmental state via citizen participation in administrative
processes.221 This section of the analysis focuses on the creation and
implementation of citizen-suit standing in environmental jurisprudence. The
Courts infusion of citizen participation in environmental law appeared to engage
substantial judicial activism to incorporate the citizen in administrative processes
originally perceived to be only within the ambit of agencies themselves. The
citizen suit continues to play an integral role in providing a check on power
balances of the federal government.
Origins of the Standing Doctrine
Standing, much like environmentalism, appears to have grown through a
series of stages. Prior to the 1920s, interested parties needed to show a right
under statute or common law principles. In efforts to protect New Deal
legislation from judicial scrutiny, the doctrine underwent transformation. The
foundation of the modem standing doctrine developed during the Progressive Era
and the New Deal as justices enthusiastic about the introduction of the

administrative state and unenthusiastic about judicial control of administrative
law fashioned requirements for access to review.223 The culmination of the New
Deal and established precedent required a plaintiff to show a legal right- of
property, arising out of contract, for protection against tortuous invasion, or
founded upon statutory privilege.224 Additionally, this legal right would not
entitle a party to standing who lacked foundation within the common law or an
explicit right under statute to bring suit, known as the classic legal wrong test.
The APA attempted to codify the concept of standing as developed in
judge-made doctrine:
A person is entitled to standing to seek judicial review if s/he is a
person suffering a legal wrong because of an agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute. 226
The APA definition incorporated the traditional threshold of standing by focusing
on whether the law had conferred a cause of action due to the injured party
suffering from a legal wrong. This codification broadened standing principles
to include citizens under statutory grants of entitlement along with those whose
common law and statutory interests were at stake 227 During the 1960s, the
standing doctrine expanded to address concerns arising from detrimental effects
of agency capture in conjunction with the perception that agency inaction or
hostility to new regulatory programs required the inclusion of beneficiaries (i.e.,
citizens) under the scope of those entitled to judicial review. The Storm King
decision, discussed supra, introduced environmental concerns as cognizable legal
wrongs sufficient to confer citizen suit standing.228 The extension of review to
beneficiaries of regulation under the standing doctrine rationally led to the

development of assertion of legal injury to beneficiaries by virtue of these
The 1970 decision of Association of Data Processing Organizations v.
Camp (Data Processing) departed from the classic legal wrong perception of
injury.229 The Court abandoned the requisite showing of legal injury, finding that
such a showing went to the merits of the case 230 The court dissected the test of
standing from the merits, injecting the concept of injury-in-fact.231 This new
concept required that the aggrieved party show an injury in fact, economic or
otherwise...that is arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in question. Following
the decision in Data Processing, appellate courts began to break the standing
doctrine into two distinct segments in efforts to bridge the obscurity between the
new injury-in-fact requisite for standing and its relationship to Article III. First,
the party would be required to satisfy the constitutional requirements involving
facets of injury-in-fact. Secondly, a party is required to satisfy prudential
requirements of standing by showing any injury is arguably within the zone of
interests protected or regulated by statute in accordance with the Data
Processing rationale.234
The explosion of environmental legislation in the early to mid-1970s
influenced further development of the standing doctrine. Data Processing
appeared to accept that beneficiaries as well as objects of regulation would be
entitled to standing to sue and seek judicial review. 235 Congress inserted citizen
suit provisions in most environmental legislation.236 Congressional enthusiasm
for use of the citizen suit in environmental law was high because it provided an
appropriate mechanism to address fears of bureaucratic failure. Commensurate
with assuaging these concerns, Congress also hoped to alleviate any conflicts in

regulation associated with agency capture and administrative laxity in
environmental regulatory enforcement. The citizen suit proved the most
politically feasible, but its contours were left largely undefined by Congress.
The Evolution of the Standing Doctrine and Judicial Activism
The decisions in this section are analyzed for levels of activism and/or
restraint through the Courts creation and continuing justification of citizen suit
standing. The examination of citizen suit standing jurisprudence is important to
discern any differences in the Courts treatment of this topic. The nature of
citizen suit standing as a creature of the judiciary as opposed to judicial review
and regulatory takings provides a third case of analysis for judicial activism and
restraint in contrast to a statutorily required mandate (judicial review) and a
constitutional principle (regulatory takings).
Environmental Standing Jurisprudence (1970-1980)
Environmental concerns proved a ripe platform for justifying the inclusion
of beneficiaries as those entitled to standing with the 1972 decision in Sierra Club
v. Morton (Sierra Club), involving the development of the Mineral King Valley in
the Sierra Nevada Mountain Range.238 While recognizing that injury in fact may
include those aesthetic and non-economic harms sufficient to confer standing to a
party, the Court held that Sierra Club lacked standing.239 The Court opined that
allowing organizations to seek review to do no more than to vindicate their own
value preferences through the judicial process would undermine the goals of the
APA.240 The Court employed judicial creativity and remedial activism by
endorsing the general right of citizens to file suit under the judicial review

provisions of the APA.241 However, citizens invoking the doctrine must show
that they be among those injured, implementing restraint in refusing to allow
trivial or generalized injuries.
The 1973 decision in United States v. Students Challenging Regulatory
Agency Proceedings (SCRAP) expounded on who may be deemed among the
injured.242 In upholding SCRAPs entitlement to standing, the Court found that
the attenuated environmental injuries alleged were sufficient to confer standing.243
The Court found that those injuries alleged as common injuries across the nation
did not deprive SCRAP of standing, distinguishing the Sierra Club in the
following rationale:
Unlike the specific and geographically limited federal action of
which the petitioner complained in Sierra Club, the challenged
agency action in this case is applicable to substantially all of the
Nation's railroads, and thus allegedly has an adverse environmental
impact on all the natural resources of the country. But we have
already made it clear that standing is not to be denied simply
because many people suffer the same injury. Indeed some of the
cases on which we relied in Sierra Club demonstrated the patent
fact that persons across the Nation could be adversely affected by
major governmental actions. [Citations omitted] To deny standing
to persons who are in fact injured simply because many others are
also injured, would mean that the most injurious and widespread
Government actions could be questioned by nobody. We cannot
accept that conclusion.244
Unlike the more specific injury in fact asserted by Sierra Club, SCRAP stood for
the proposition that injuries national in character conferred standing upon citizens
to challenge actions if they could establish an injury in fact. SCRAP was the most
expansive opinion addressing citizen suit standing in environmental
jurisprudence, using precedential activism to include those matters of national
concern as legally cognizable injuries that could entitle citizens to standing.

This opening of the judicial process to citizens to present the most
attenuated harm to satisfy injury in fact was followed in 1978 by Duke Power Co.
v. Carolina Environmental Study Group (Duke Power).245 In Duke Power, the
Court assessed the constitutionality of the Price-Anderson Act246 and concomitant
standing of environmental groups that asserted the inability of Duke Power to
maintain safety standards of proposed nuclear plants without the protection of the
Act. Holding the Act unconstitutional, the Court considered the effects of the
project247, following the tests as set forth by Sierra Club and SCRAP regarding
non-economic environmental injury-in-fact.248 Interestingly, Duke Power
specifically repudiated that citizen suits must establish more than a traceable
injury-in-fact and the capability of the remedy sought to achieve redressability.249
The Duke Power Court synthesized the requirements as follows:
Where a party champions his own rights, and where the injury
alleged is a concrete and particularized one which will be
prevented or redressed by the relief requested, the basic practical
and prudential concerns underlying the standing doctrine are
generally satisfied when the constitutional requisites are met.250
Duke Power showed restraint, following the already expansive precedents of
Sierra Club and SCRAP, supra. The rationale of injury in fact in citizen suit
standing under these decisions would be short lived. Beginning in the mid-1970s,
the Court began to withdraw from the holding in SCRAP in non-environmental
decisions, suggesting a retrenchment of the standing doctrine in the next

Environmental Standing Jurisprudence (1980-Presenf)
In 1984 the Court focused on the constitution principles underlying the
standing doctrine in the non-environmental decision of Allen v. Wright.252 A
discussion of Allen is important even in environmental jurisprudence analysis
owing to its discussion of the standing doctrine and its foundation within the
separation of powers principle. Specifically,
... [T]he standing inquiry requires careful judicial examination of a
complaint's allegations to ascertain whether the particular plaintiff
is entitled to an adjudication of the particular claims asserted... [it]
must be answered by reference to the Art. Ill notion that federal
courts may exercise power only "in the last resort, and as a
necessity," and only when adjudication is "consistent with a system
of separated powers and [the dispute is one] traditionally thought
to be capable of resolution through the judicial process...,'253
The court denied standing to petitioners, holding that neither injury asserted was
sufficient under precedent to confer standing.254 The Court relied on these
principles to find that the petitioners failed to assert a judicial cognizable interest.
Further, the Court found that the alleged injury of the childrens diminished
ability to receive an education in a racially integrated school was not fairly
traceable to the governments conduct.255 The Allen decision conveyed judicial
restraint in both the adherence to prescriptive wisdom in tradition and recognizing
the limitations on the judiciary under the separation of powers.256
The Court directly confronted the application of a citizen suit provision in
the 1987 decision of Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd
(Gwaltney). At issue in Gwaltney was the entitlement to bring suit under the
citizen suit provision of the Clean Water Act (CWA) involving wholly past
violations.258 Reviewing the plain language and intent of the provision, the Court
found that the provision conferred standing to bring suit concerning ongoing or

intermittent violationsa reasonable likelihood that a past polluter will continue
to pollute in the future.259 This reading was found sensible with the notice
requirements of the CWA, as well as the perception that citizen suits were
designed to supplement rather than supplant governmental enforcement. The
Gwaltney decision implemented restraint in its holding by relying on the original
interpretations of the function of the citizen suit as supplementary as a traditional
interpretation of Congress, the natural aristocracy of the Burkean conservatism.
Gwaltney provided a strict interpretation of the CWA citizen suit
provision, similar to those found in most environmental statutes, but it did not
directly address the requirements of standing.261 A series of decisions beginning
in the late 1970s and early 1980s had established new requirements that the
aggrieved party must show that the alleged injury is attributable to the conduct of
defendant, and that the injury is likely to be redressed by a decree on his behalf.
The roots of these concerns were embedded in the notion of separation of powers,
as explained by the most transforming opinion on standing, Lujan v. Defenders of
Wildlife (Lujan II), infra.263
The Supreme Court visited the contours of the standing doctrine twice in
the Lujan cases.264 At issue in Lujan / was a challenge by the National Wildlife
Federation (NWF) of the decision by the Bureau of Land Management (BLM) to
lift protective restrictions on 180 million acres of public land.265 The Court held
that the NWF lacked standing, concluding that averments which state only that
one of respondent's members uses unspecified portions of an immense tract of
territory, on some portions of which mining activity has occurred or probably will
occur by virtue of the governmental action was insufficient to state a specific
injury in fact to satisfy standing requirements. The attenuated linkage between
the BLM land review program and the NWFs assertion to enjoy its natural

beauty without the threat of commercial activity set the stage for Lujan II, which
focused purely on the issue of standing.
Lujan II concerned the interpretation of §7(a)(2) of the Endangered
Species Act (ESA).267 Early policies of the Secretaries of Interior and Commerce
interpreted the reach of the ESA provisions to extend outside the borders of the
United States.268 However, in 1983 the Interior Department changed its position
on this policy, promulgating regulation holding that the ESA provision would
only extend to actions within the United States.269 The Defenders of Wildlife
(Defenders) filed suit, asserting injury in fact with the testimony of two travelers
to foreign countries would suffer injury by not being guaranteed the continuance
of those species in their natural habitats.270 The Court began by recognizing that
injury asserted was cognizable in the first instance under Sierra Club, but
cautioned that such an injury must also require that the party be among the
injured.271 Under this rubric, the Court set forth those irreducible constitutional
requirements of standing:
First, the plaintiff must have suffered an injury in fact that is both
concrete and particularized and actual or imminent, not
conjectural or hypothetical. Second, the injury has to be fairly
traceable to the challenged action of the defendant, and not the
result of the independent action of some third party not before the
court. Third, it must be likely that the injury will be redressed by a
favorable decision [citations omitted].272
The Court used this test to reject that Defenders was entitled to standing.273 In so
holding, the Court addressed the contentions between regulatory objects and
beneficiaries. The Court reasoned that because the injury was contingent upon
the [in] action of a government agency over a third party, that causation and

redressability would necessarily hinge upon the response of that regulated entity
and be rendered meaningless in the process of determining standing.274
In the context of environmental jurisprudence, Lujan //relied upon the
citizen suit provision of the ESA and its constitutionality under Article III. The
Court emphasized that Article III required something more than a generally
available grievance about government... claiming only harm to his and every
citizens interest in proper application of the Constitution and laws, and seeking
relief that no more directly and tangibly benefits him than it does the public at
large.275 The Court invoked the separation of powers context in recognizing that
vindicating the public interest is the function of Congress and the Chief
Executive.276 This rationale insulated the Court from undertaking a role that
would effectively undermine the formulation and implementation of laws via its
sister branches. The result for citizen suits was a perceived retraction of standing,
where the Court found that standing under Article III requires that a citizen must
show that the action injures her in a concrete and personal way.277 Lujan II
utilizes judicial restraint in setting a formula for the standing inquiry and
gathering prior precedent relying on separation of powers principles to restrict the
doctrine that appeared expansive at the outset of environmental jurisprudence.
The lack Of recognition of generalizable injury attributable to environmental
citizen suit provisions in Lujan II qualifies as precedential activism by failing to
defer to Sierra Club and SCRAP, supra, in refuting the generalizability
Lujan II provided the basis for the standing inquiry in a case filed by
parties with competing interests against the mandate of the ESA in Bennett v.
Spear (Bennett)}19 In Bennett, the petitioners filed suit under the citizen suit
provision of the ESA280 to contest the implementation of a Biological Opinion for

the Klamath River Basin.281 Interpreting the use of any person, the Court
concluded that the petitioners were citizens entitled to suit under the ESA. Under
the Lujan requirements, the Court found petitioners entitled to standing. The
Court coupled Lujans requirements with the zone of interests test set forth in
Data Processing, supra, for claims asserted under §7 of the ESA, and held
petitioners injuries in sustaining loss of irrigation water from the Basin also
appropriate. In so holding, the Court employed the following rationale:
While, as we have said, it does not suffice if the injury complained
of is '"the result [of] the independent action of some third party not
before the court,"' that does not exclude injury produced by
determinative or coercive effect upon the action of someone else.
[Citations omitted]283
The Court stated that the coercive effects of the Biological Opinion had legal
consequences, so that the petitioners injuries fell within the zone of interests
under the ESA. Following the precedents of Lujan II and Data Processing, the
Court applied judicial restraint. Further, the use of the zone of interests tests in
this respect was damaging to environmental protection efforts, providing a viable
threat to future environmental regulations that are examined under the zone of
Juxtaposing Lujan //and Bennett, there exists a subtle undertone of
counter-majoritarian activism by the Court to encourage a policy shift by
Congress in the treatment of §7 of the ESA. In Lujan II, the Court refused
standing, contrary to the explicit text of the ESA that "the Secretary shall insure
that any actions funded by the agency shall not endanger the continued existence
of a species."284 However, in Bennett, the Court granted standing under the
citizen suit provision of the ESA because of the peripheral effects the Biological
Opinion would have on the injured parties. In this context, it appears that the

Court engaged activism to distinguish between the outcomes of Lujan II and
Bennett based on the extra-territoriality nature of the facts presented in Lujan II.
Arguably, then the Court's decisions reflect its reluctance to address
environmental concerns outside the borders of the United States, while
encouraging inclusion of third parties under the standing doctrine if their interests
fall under Data Processing.
In 1998 the Court would continue its trend in restrictive Lujan II standing
analysis in Steel Co. v. Citizens for a Better Environment.265 Reminiscent of
Gwaltney, supra, the Court revisited standing to bring suit on wholly past
violations under the citizen suit provision of the Emergency Planning and
Community Right-To-Know Act of 1986 (EPCRA).286 In a lengthy justification,
the Court found that petitioners lacked standing under Lujan II by failing to
satisfy the redressability prong.287 In particular the only cognizable remedy
would have been the payment of civil penalties, paid not to the petitioner but to
the U.S. Treasury. Because the petitioners failed the redressability prong, the
Court did not reach the issue of past violations under EPCRA, finding that
standing must be determined prior to determining the merits of the case.288 Once
again the Court followed Lujan //(written by Justice Scalia, who also wrote for
the majority in this Court) and engaged judicial restraint. The Court did recognize
that the question presented in Steel Co. was of jurisprudential importance, but
because of the failure to satisfy the standing requirements, the Court would not
reach it.
The last decision of the Court to review standing appeared to shift away
from restraint and incorporate environmental injuries into the Lujan II
requirements in the 2000 decision of Friends of the Earth, Inc. v. Laidlaw
Environmental Services (FOE)}69 In FOE, the Court was asked to determine

citizen suit standing in the instance where a violator comes into compliance with
the CWA during litigation. The Court found that the facts and testimonies of
FOE demonstrated a direct connection to the injury in fact requirements of Lujan
II, conclusively stating that recreational, aesthetic, and economic interests of the
character supplied were sufficient under the first prong.290 Further, contrary to
Steel Co., supra, the Court found that civil penalties satisfied the redressability
It can scarcely be doubted that, for a plaintiff who is injured or
faces the threat of future injury due to illegal conduct ongoing at
the time of suit, a sanction that effectively abates that conduct and
prevents its recurrence provides a form of redress. Civil penalties
can fit that description. To the extent that they encourage
defendants to discontinue current violations and deter them from
committing future ones, they afford redress to citizen plaintiffs
who are injured or threatened with injury as a consequence of
ongoing unlawful conduct.291
The Court distinguished Steel Co. as a decision concerning wholly past violations,
while FOE petitioners alleged ongoing and continual injury, sufficient to satisfy
Lujan //requirements. FOE and its precedential activism in failing to follow
Steel Co. on the temporal distinction suggests that the Court may be returning to a
expanded view of the standing doctrine. Additionally, FOE's synthesis of Lujan
//requirements afford the implication that the Court will continue to use the
requirements, albeit recognizing environmental interests as injuries under the
reminder to the Court that the relevant showing for purposes of Article III
standing... is not injury to the environment but injury to the plaintiff.292

Unlike the previous sections that engage concepts created by the judiciary
or by statute, regulatory takings concerns tangible and intangible interests
accorded to real property. Property is explicitly and constitutionally protected
under the Takings Clause of the Fifth Amendment.293 The concept of regulatory
takings introduced in Pennsylvania Coal Company v. Mahon, infra, strained the
Courts ability to meld historical perceptions of property with contemporary
constraints of environmental regulation. This portion of the research analyzes the
approach taken by the Court in determining legal entitlement to just compensation
when an environmental regulation effectuates a taking of private property. This
section of the analysis is important in establishing the pattern of judicial activism
because it centers on the concept of federalism and how federal environmental
regulation may impinge on the basic values associated with property. The role of
the court proves critical in maintaining the balance between rights of property
owners and the capability of regulation to carry out its mandate under the law
without substantially interfering with those rights.
Property as an Evolving Concept and its
Implications on Jurisprudence
To ascertain the level and type of activism used by the Court with respect
to regulatory takings, a proper explanation of the concept of property is in order.
Without an account of property as an evolving concept, the regulatory takings
issue lacks the substance and depth that it is entitled to as an institution in

common law and philosophy. More succinctly, those rights imbued to the
ownership of property have played an integral part in the creation of common law
remedies and the foundation of the regulatory takings quandary. John Locke
viewed the ownership of property as enjoying the products of human creativity in
the use of property, the protection of which as the the great and chief end of
government.294 James Madison expanded on the Lockean concept of property
rights to embrace everything to which a man may attach a value and have a
The American construct of property follows the Lockean perception of
property rights, metaphorically titled the bundle of sticks, including possession,
use, the right to exclude others, and disposal.296 The Court has defined property
rights in its takings jurisprudence as the group of rights inhering in the citizens
relation to the physical thing.. .297 However, property rights are not
constitutionally protected and evolve to reflect new economic and social
values.298 More specifically, property interests are created and their dimensions
defined by existing rules or understanding that stem from an independent source
[such as state law].299 This infusion of rights is critical to the regulatory takings
inquiry, because it suggests that a physical thing may be stripped of its utility
without physical appropriation, effectuating a taking where just compensation is
constitutionally mandated. Property rights as values attaching to property serve as
the basis for the application of the takings doctrine to condemnation and eminent
domain proceedings entitling private owners to just compensation.

The Modem Takings Doctrine
The modem takings doctrine is grounded in the utilitarian ethic.300 Under
this rubric, judicial bodies are forced to use balancing tests instead of any hard
fast legal rule, presupposing a duality or plurality of positions in addressing the
problems intersecting government regulation and its interference with property
rights. Early takings decisions reflected the belief that only physical invasions
of property would effectuate a taking sufficient to invoke the Takings Clause.302
Government activities that severely affected property were found not to be a
taking.303 This separation of physicality and rights disappeared in the early
twentieth century with the landmark seminal opinion of Pennsylvania Coal Co. v.
Mahon (Penn. Coal).3M
Justice Oliver Wendell Holmes ushered in the era of the modem takings
doctrine with Penn. Coal. At issue in Penn. Coal was the constitutionality of the
Kohler Act305, which made it unlawful to mine underneath residential houses.306
Holding that the Act was an improper use of the states police power, Justice
Holmes rationalized the courts decision as follows:
Government hardly could go on if to some extent values incident
to property could not be diminished without paying for every such
change in the general law. As long recognized, some values are
enjoyed under an implied limitation and must yield to the police
power. But obviously the implied limitation must have its limits, or
the contract and due process clauses are gone. One fact for
consideration in determining such limits is the extent of the
diminution. When it reaches a certain magnitude, in most if not in
all cases there must be an exercise of eminent domain and
compensation to sustain the act.307
Justice Holmes issued the now familiar maxim that while property may be
regulated to a certain extent, if regulation goes too far it will be recognized as a

taking.308 The Court held that the Acts prohibition constituted a taking under
the Fifth Amendment.309
Penn Coal is the considered the genesis of the regulatory takings doctrine.
Justice Holmes opinion recognized that an unchecked exercise of police power
would have dire consequences for the property owner. In order to protect the
rights of property owners and maintain the proper application of the police power
in regulation, Penn. Coal introduced the diminution in value balancing test to
determine the existence and extent of a taking. The test requires a case-specific
inquiry into whether a taking of any portion of value in the property rights had
occurred. Penn. Coal was revolutionary, engaging injudicial creativity activism
by introducing this test. Additionally, counter-majoritarian activism also
underlies Holmes utilitarian approach, embedded in the rationalization of the
diminution in value test as follows:
[T]he question depends upon the particular facts. The greatest
weight is given to the judgment of the legislature, but it always is
open to interested parties to contend that the legislature has gone
beyond its constitutional power.310
The determination of whether the use of the police power was appropriate or
constituted a taking under Penn Coal fell squarely within the Courts purview.
Interestingly, the courts preservation over this determination also exhibits signs
of judicial restraint, harboring distrust for human reason (via the use of the police
power by state and federal governments), and a preference for prescriptive
tradition as iterated in the Constitution.311
Penn. Coal did not address or endorse any legal principle as to how the
court would assess whether regulation goes so far as to effectuate a taking. At the
close of the 1920s, the Supreme Court retreated from land use policy and

attendant takings issues.312 For the next forty years, land use policies would be
developed under the common perception that land use was primarily a local
matter. Takings issues pertaining to items other than property were examined
under condemnation law.313 Several factors contributed to the Courts absence in
regulatory takings. First, land use policy was viewed by the Court as a local
concern that was best left to state governance and law.314 Second, the New Deal
agenda and its infusion of social values, discussed supra, challenged prior
constitutional interpretations of property law. Third, the break out of World War
II commanded the Courts attention to takings issues dealing with wartime
necessities. Finally, the Civil Rights movement of the 1950s and 1960s drew the
attention and activism of the court away from property towards civil liberty
The return of the Court to regulatory takings appeared to coincide with the
rise of environmentalism in the 1970s.315 Paralleling the importance of Penn.
Coal in regulatory takings jurisprudence was Penn. Central Transportation Co. v.
City of New York (Penn. Central)?16 At issue in Penn. Central was the
application of the New York Landmark Preservation law to the proposed
expansion of the Grand Central Terminal station. The outset of analysis
conceded the lack of any set of rules in determining whether a taking has
occurred.318 The Courts review of earlier takings jurisprudence culminated in the
creation of the Penn. Central factors to assess whether a taking has occurred.
These case-specific inquiries include:
The economic impact of the regulation on the claimant,
particularly the extent to which the regulation has interfered with
distinct investment-backed expectations ..., [and] the character of
the governmental action. A "taking" may more readily be found
when the interference with property can be characterized as a

physical invasion by government, than when interference arises
from some public program adjusting the benefits and burdens of
economic life to promote the common good... and instances in
which a state tribunal reasonably concluded that "the health safety,
morals, or general welfare would be promoted by prohibiting
particular contemplated uses of land.
These factors are the foundation for the modem regulatory takings inquiry. Under
these considerations and the facts of the case, the court held that the application of
the Landmark Law to the Grand Central Project was not a taking under the Fifth
Penn. Central also attempted to prevent the dissection of property into
parcels in future regulatory takings analyses, stating that
"Takings" jurisprudence does not divide a single parcel into
discrete segments and attempt to determine whether rights in a
particular segment have been entirely abrogated. In deciding
whether a particular governmental action has effected a taking, this
Court focuses rather both on the character of the action and on the
nature and extent of the interference with rights in the parcel as a
The innovation of Penn. Centrals three factor balancing test demonstrated
judicial restraint in two respects. First, the gathering of prior precedent to infuse a
series of factors to determine a case-specific balancing test showed a preference
for wisdom as set forth in earlier generations of thought to guide future directions
in regulatory takings matters. Apart from stare decisis, or upholding and
following judicial precedent, the Court showed signs of restraint by recognizing
the evolutionary character of property law in the context of regulatory takings and
its continuing difficulty in assessing a regulatory taking. Both Penn. Coal and
Penn. Central supply the framework of regulatory takings.

Regulatory Takings and Activism
This section analyzes the regulatory takings jurisprudence under the
prescribed methodology, supra. The forty year hiatus of the Supreme Court
signifies the importance and complexity of the regulatory takings issue. The rise
of the environmental movement on the tailcoat of the Civil Rights Movement
signaled a shift in social values. Expanding regulation under environmental
statutes threatened to pervade the fundamental interdependence between the
personal right to liberty and the right in property.322 The regulatory takings
dilemma would continue to challenge a court reluctant to adopt any categorical
test. As this section demonstrates, the Court struggled to connect new perceptions
of property rights with constitutionally embedded principles of property.
Regulatory Takings Jurisprudence 1970-1980
The reentry of the Supreme Court into the regulatory takings query was
problematic. Penn. Central led as the seminal opinion of the 1970s as the most
definitive statement by the Court in determining whether regulation constituted a
taking. The last examinations of the decade concentrated on the bundle of
sticks concept instilled in property right principles. Recall that the bundle of
sticks concept includes possession, use, the right to exclude others, and disposal.
In Andrus v. Allard, a non-land use case, the Court considered whether Eagle
Protection and Migratory Bird Treaty Acts violated the Takings Clause by
prohibiting the sale of eagle parts and migratory waterfowl. In holding that no
taking occurred under the implementing regulations324, the court reasoned the
denial of one traditional property right does not always amount to a taking.. .the

destruction of one strand of the bundle is not a taking, because the aggregate
must be viewed in its entirety.325 The court effectively reinforced its
construction of the ESA trader TVA v. Hill, supra, exercising judicial restraint in
upholding the Act and its concurrent regulations.
Later that year, Kaiser Aetna v. United States addressed whether Kaiser
could exclude public access to a marina it had developed. The Army Corps of
Engineers asserted jurisdiction over the marina under regulatory authority of §10
of the Rivers and Harbors Act of 1899 after Kaiser had invested substantially in
improving the marina.327 While the Court held that the marina was subject to
regulation under the Act, it also held that such regulation did not deprive Kaiser
from the right to exclude public access to it.328 In fact, the court explicitly held
that the right to exclude, so universally held to be a fundamental element of the
property right, falls within this category of interests that the Government cannot
take without compensation.329 In so holding, the Court specifically reasoned that
the imposition of the navigational servitude in this context will result in an actual
physical invasion of the privately owned marina. In this respect, the Court
engaged in remedial activism by implying that the government may not exercise
its regulatory authority to deprive an owner of his right to exclude others,
elevating this stick to higher importance in the takings context than disposal as
articulated in Andrus.
Regulatory Takings Jurisprudence 1980-Present
At the close of the 1970s, the Court appeared to gain some confidence in
its stance on regulatory takings, concentrating on the individual rights accorded to
ownership. The opinions in the 1980s reflected the recognition by the Court that
its tests were inadequate and the continuing failure of the Court to establish a

cogent approach to regulatory takings. However, the Court remained hesitant to
address the diminution in value to determine how far a regulation may reach until
it constitutes a taking. In Hodel and Riverside Bayview, supra, the court
summarily rejected that the mere assertion of regulatory jurisdiction by a
governmental body does not constitute a regulatory taking.331 In 1987, the Court
engaged in substantial review of regulatory takings in three seminal opinions.
The first landmark opinion tackling the issue was Keystone Bituminous
Coal v. DeBenedictis (Keystone).332 With facts virtually identical to Penn. Coal,
the Court considered whether the Pennsylvania Bituminous Mine Subsidence and
Land Conservation Act violated the Takings Clause.333 Holding that the Act did
not effect a regulatory taking, the Court distinguished from Penn. Coal, finding
that the nature of the Bituminous Act was to protect the public welfare in
preventing ground subsidence due to mining.334 The Court went a step further to
assess the economic viability of the land, finding that petitioners failed to assert
that the Act would render all commercially viable use unprofitable.335 Under the
facts of the case, the Court found Penn. Coal distinguishable from the present
instance, rejecting the notion that the Act constituted a taking under the Penn.
Central factors. The Keystone decision simultaneously engaged in activism and
restraint. By distinguishing the instant case from Penn. Coal on the basis of
public versus private intents of the two Acts, the Court engaged in precedential
activism by failing to defer to Penn. Coal. However, the Court also showed
restraint by following Penn. Central and adhering to the established principle that
regulation to abate nuisance will be sanctioned under the Takings Clause.336
The second case of the 1987 term considered whether a regulation must be
deemed a taking before compensation was required. In First English Evangelical
Lutheran Church v. County of Los Angeles (First English), the Court considered

whether an ordinance prohibiting reconstruction in a floodplain amounted to a
temporary taking of private property. Temporary takings occur in three
different manners as described by First English', repeal of the offending ordinance
by the governing body (as was the case in First English), abnormal delays in
receiving proper permitting and zoning variances for development, and
development moratoria, discussed more fully in Tahoe Sierra, infra. In holding
that temporary takings mandated compensation under the Constitution, First
English turned traditional practices on their head. Ultimately, municipalities that
would enact and then repeal an ordinance without compensation were no longer
able to engage in such practices under the holding of First English.
In First English, the court held that no subsequent action by the
government can relieve it of the duty to provide compensation for the period
during which the taking was effective. In so holding, the Court limited it to
the facts as present in this case, exercising judicial restraint in recognizing its own
limits under the Constitution. The Court put this reasoning succinctly in the
We limit our holding to the facts presented...We realize that even
our present holding will undoubtedly lessen to some extent the
freedom and flexibility of land-use planners and governing bodies
of municipal corporations when enacting land-use regulations. But
such consequences necessarily flow from any decision upholding a
claim of constitutional right; many of the provisions of the
Constitution are designed to limit the flexibility and freedom of
governmental authorities, and the Just Compensation Clause of the
Fifth Amendment is one of them. As Justice Holmes aptly noted
more than 50 years ago, "a strong public desire to improve the
public condition is not enough to warrant achieving the desire by a
shorter cut than the constitutional way of paying for the change."340

Finally, the First English Court explicitly recognized that the decision to
exercise the power of eminent domain is a legislative function for Congress and
Congress alone to determine.'"341 However, the Court was clear that the takings
determination continued to be a judicial question.
The final decision in 1987 would attribute one-half to what is now known
as the unconstitutional conditions doctrine pertaining to regulatory takings.342
Under this doctrine,
The government may not require a person to give up a
constitutional right in exchange for a discretionary benefit
conferred by the government where the property sought has little
or no relationship to the benefit.343
Nollan v. California Coastal Commission afforded the basis for this doctrine. In
Nollan, the Court confronted the use of exactions, or permit conditions on the use
of property that amount to a taking. The Coastal Commission conditioned
granting a permit to redevelop the beachfront property on the requirement that the
owners supply an easement of access to the beach for the public. Holding that the
exaction would amount to a taking, the Court returned to Agins v. Tiburon, a
zoning case that held that land-use regulation would be upheld so long as
substantially advance[s] legitimate state interests" and does not "den[y] an owner
economically viable use of his land.344 In terms of this analysis, Nollan showed
restraint in returning to prior precedent of Agins and Penn. Central, supra.
However, political practices were changed under Nollan, because municipalities
must show that exactions would advance legitimate state interests in permit
exactions or conditions.

The decisions of the late 1980s suggested a more receptive Supreme Court
to regulatory takings and their effects on property rights. While these opinions
concentrated on the nature of the government action and its attendant
consequences of taking, in 1992 the Court attempted to expound on precedent and
the justification of the diminution in value test previously espoused in Penn. Coal
and Agins, supra. At issue in Lucas v. South Carolina Coastal Council was the
affect of the Beachfront Management Act on the petitioners property.345 Justice
Scalia reiterated the Courts treatment of physical invasion and diminution in
value instances under Agins and legitimate state interests. The Court held that the
prohibition of the development of Lucas land under the Act deprived him of all
economically viable use, effectuating a taking despite the purpose of the Act to
protect the public welfare, such as in Keystone, supra346 The Court set forth a
categorical rule of regulatory takings, holding that
where the State seeks to sustain regulation that deprives land of all
economically beneficial use, we think it may resist compensation
only if the logically antecedent inquiry into the nature of the
owner's estate shows that the proscribed use interests were not part
of his title to begin with.347
This new category of total takings focused not on the physical invasion of the
property, but the complete elimination of use of the property, one of the sticks
in the bundle. Holding with tradition, the Court conceded that the inquiry would
entail another case-by-case balancing test, considering relevant factors of degree
of harm, social value and alternatives to harm to the right. The Court reasoned
that anything less than a total taking would be subject to an analysis of the Penn.
Central factors.349 The court remanded to the Supreme Court of Carolina.350

Lucas and the creation of the total takings inquiry committed the Court
to remedial activism, engaging yet another balancing test under a narrow rule that
would entitle an owner to compensation if all economically viable use was
eliminated by regulation. Further, the Court also engaged in non-originalist
activism, identifying early interpretations of the Takings Clause as only
applicable to physical invasion and fashioning precedent opposite from that
perceived intent. The dissents from Justices Blackmun and Stevens vigorously
berated the Court for identifying this interpretation in what they argued was an
unnecessary case to hear. The dissenters implied that restraint would be the best
option, acknowledging the existence of evolutionaiy change in social values. The
holding in Lucas foreclosed the possibility of that evolution, establishing a
permanent categorical rule against the historical grain in the Courts regulatory
takings precedents.
Following the categorical total takings rule of Lucas, the Court returned
to flesh out the remaining contours of the unconstitutional conditions doctrine
with Dolan v. City of Tigard.351 In Dolan, the Court revisited the question left
open by Nollan as to the required degree of connection between the exactions
imposed by the city and the projected impacts of the proposed development.352
The permit in question required the petitioner to dedicate portions of her land to
government use in accordance with the city of Tigards Master Plan. Relying on
Nollan, the Court reviewed state law to create another balancing test to determine
whether the exaction will withstand takings review. A dedication or exaction (1)
must have an essential nexus to a legitimate state interests and (2) be roughly
proportionate to the projected impacts of the proposed development.353 In
applying this new test, the Court found that the City had not shown rough
proportionality between the exaction and the stated purpose of flood control.354

Exercising remedial activism, the Court effectively shifted the burden of proof
from the petitioner to the city under the essential nexus test. This shift in
evidentiary burden upset long held constitutional doctrine of presumption of
constitutionality accorded to legislative action.355
Lucas and the Nollan/Dolan tests spawned considerable litigation in the
courts, but with little success for property owners.356 In Palazzolo v. Rhode
Island the Court confronted the regulatory takings issue in context of regulation of
property after it is acquired. The unique factual history of the case presented the
Court with the opportunity to expound upon Lucas and Nollan. First, the Court
rejected the contention that Lucas overruled the holding of Nollan, performing
restraint in showing preference to stare decisis. Second, the court rejected the
contended holding of Lucas that any new regulation becomes a background
principle of property law which cannot be challenged by those who acquire title
after [its] enactment.358 The holding of the Court was that post-regulation
transfer of title would not automatically bar takings claims, propping the door
open for future regulatory takings challenges of this nature. The effect of
Palazzolo was one of restraint, returning to and clarifying prior precedent, without
setting forth new precedent. Justice OConnors concurrence recognizes the
nature of this holding, finding that Palazzolo restored the balance to the Penn.
Central inquiry that Lucas disrupted.
The Court continued its trend of clarifying precedent with the landmark
case of Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency
(Tahoe).359 The Court addressed moratoria on the development of land
surrounding Lake Tahoe. A moratoria is an authorized delay in the provision of
governmental services or development approval.360 At issue in Tahoe was

whether the imposition of two successive moratoria on development around Lake
Tahoe effected a taking under Lucas and the Takings Clause.361 First English
acknowledged that moratoria could constitute a regulatory taking, but the Tahoe
Court pointed out that First English declined to address the merits of the case in
the takings inquiry. The court rejected petitioners contention that the 32-month
segment could be severed from the entire estate, following Penn. Central in
stating that the inquiry must focus on the parcel as a whole.362 The Court
refused to adopt another categorical rule in the context of moratoria, stating that
the interest in fairness and justice will be best served by relying on the familiar
Penn. Central approach when deciding cases like this.363 The Court reasoned
that a categorical rule announcing that any time period of deprivation amounting
to a taking would function more as a legislative act:
A rule that required compensation for every delay in the use of
property would render routine government processes prohibitively
expensive or encourage hasty decision-making. Such an important
change in the law should be the product of legislative rulemaking
rather than adjudication.364
In expressly declining to adopt another categorical rule, the Court exercised
restraint in adhering to Penn. Central and the factual inquiry approach. The Court
affirmed the California Supreme Courts holding that the moratoria did not effect
a taking under the Constitution. Such reliance on past precedent lends support to
the argument that the Court will continue upon its path in case-specific inquiry,
carefully balancing the rights of the property owners and the governmental action
against the purpose of the Takings Clause to bar Government from forcing some

people alone to bear the public burdens, which in all fairness and justice, should
be borne by the public as a whole.365

The separate analyses of judicial review of informal agency action, citizen
suit standing, and regulatory takings set forth in the previous sections are
synthesized here to come to a conclusion concerning the influence in
environmental law by the Supreme Court to discern a pattern of legal
conservatism and its resulting role in environmental jurisprudence. Each topic
addressed aspects of a differing character: judicial review as ultimately a statutory
mandate, citizen suit as an outgrowth of a judicially created doctrine, and
regulatory takings as a constitutionally embedded principle of property rights.
The conclusion of this research finds the Court exercising judicial activism and
restraint to preserve institutional equilibrium, discussed below. First, each topic
will be covered separately to supplement the respective analyses. This section
will continue with conclusions derived form the findings that illustrates the
principle aims of the Court to maintain the application of constitutional law with
the growing valuation attached to new and contemporary challenges in
environmental regulation.

Judicial Review
Based on the analysis in Section III, supra, the Court employed judicial
restraint to some degree in all but three of the reviewed decisions. See Benzene,
Riverside, and SWANCC, supra. The principle of judicial creativity activism was
used by the Court to establish limits on its own review under the APA in Overton
Park with the creation of the hard look doctrine. This doctrine was justified by
the Courts as an appropriate mechanism for greater scrutiny of informal agency
action to ensure agency compliance with procedural requirements in informal
rulemaking. The imposition upon agencies to under this doctrine reflected the use
of remedial activism by the Court. Overton Park recognized that while the Courts
retain judicial oversight of informal agency action, under the separation of powers
the Courts review is limited to the nature of the agency action in promulgating
regulation. With the establishment of the hard look doctrine and arbitrary and
capricious review of informal agency action, the Court placed limitations on its
own review to prevent substituting its own judgment for that of the agency.
Ultimately, activism in the Overton Park decision was a limitation on both
judicial review by the Court and the procedural processes available to agencies in
informal procedures.
Throughout the 1970s, the Court employed the hard look doctrine to
ensure procedural completeness in informal procedure and the Courts own
capability of review. In Kleppe, the Court deferred to agency action, affirming
the agencys regulatory role as providing the expertise necessary to carry out the

mandates of NEPA. Vermont Yankee reaffirmed the nature of judicial review
under the APA as limited to those provided in the statute, exercising judicial
restraint and deferring to the Atomic Power Commission. Vermont Yankee also
curbed the expansion of judicial review provisions outside of the APA that had
been imposed following Overton Park in the appellate courts. In TV A, the Court
affirmed the legislative mandate of the ESA as a law executed under the properly
delegated power of Congress by enjoining the operation of Tellico Dam. The
exercise of judicial restraint by the Court under the separation of powers doctrine
was overridden by Congress, failing to protect the endangered species at issue in
The 1980s continued this trend injudicial restraint with three exceptions.
Strycker held that environmental considerations in an EIS may not take precedent
over other considerations under NEPA, indicating a preference towards the
natural aristocracy in imposing restraint and deferring to HUD. However, that
same year, the Court would elevate the concern of safety as an environmental
issue in the Benzene decision, supra. Benzene engaged in counter-majoritarian
activism by failing to defer to the legislative definitions under the pertinent
sections of OSHA, and remedial activism in reviewing the term significant
harm under OSHA. The Court placed the evidentiary burden on the government
upon the Courts definition of significant harm, questioning long held principle
that legislative interpretations are entitled to a presumption of constitutionality.
The Court also fashioned its own interpretation of waters of the United States in
Riverside to include wetlands adjacent to a navigable waterway. Implying that
navigability was of minor importance in interpreting the CWA, the Court used
remedial activism in expanding the jurisdiction of the regulating agency and non-
originalist activism by discounting the navigability concern of the definition.

While Riverside protected the wetlands from development, the Benzene standard
would be set to the challenged level in the decision.
The 1990s would continue the exercise of judicial restraint and agency
deference with Babbitt, supra. The most significant question of constitutionality
of the CWA under the Commerce Clause was not reached in SWANCC, supra,
because the Court held that the MBR was not entitled to Chevron deference.
Using precedential activism, the Court declined to follow Riverside and narrowly
hold that the MBR was invalid. In so holding, SWANCC reintroduced the
federalism concern, returning to the commonly held perception of land use as a
traditional state power. Even if this argument was raised to avoid the
constitutionality of the MBR, the argument was used again this year in Alaska,
supra. Alaska exercised judicial restraint in affirming the traditional oversight
role of the EPA in reviewing CAA licensing procedures. More importantly,
Alaska attempted to incorporate both Skidmore and Christenson in reviewing the
level of deference to long standing interpretations of environmental law in
enforcing regulations. SWANCC and Alaska suggest that the Court will continue
to meld all standards of deference in reviewing future agency interpretations.
Finally, the reintroduction of the federalism argument, mirrored in the
local/national distinction of 1930s Commerce Clause jurisprudence indicates that
the Court may rely on traditional notions of federal and state power in order to
avoid the thorny constitutional question.
Overall, the Court has exercised restraint in tailoring judicial review, with
the few exceptions in Overton Park, Benzene, Chevron, and Riverside, supra.
This finding suggests that the Court has been more conservative in this aspect of
environmental jurisprudence. This adherence to statutory mandate of the APA is
commensurate with the notions of separation of powers and federalism in

maintaining an institutional dynamic between the branches of government, with
jurisprudence operating as an equilibrium between the branches. The Court still
maintains its capability as ultimate arbiters of the law, balancing this power with
those of Congress and the function of administrative agencies as experts in
A pattern of activism and restraint is more readily discemable in
environmental citizen suit standing jurisprudence. The citizen suit is a judicial
innovation, beginning with the introduction of the citizen as an injured party in
Storm King, supra, and continuing throughout the 1970s. Sierra Club affirmed
the incorporation of the citizen in administrative challenges, including
environmental and aesthetic harms as cognizable injuries. Sierra Club also
employed restraint, finding that a generalized injury was insufficient to confer
standing. SCRAP expanded upon this concept to include injuries national in
character, using precedential activism to abscond from Sierra Club. The Court
withdrew from SCRAP, implementing a retrenchment from expansive application
of standing in the 1980s with Allen and Gwaltney, supra.
The 1980s signaled the return to conservatism by the Court under the
standing doctrine. The sea change actually culminated in the 1990s with the
Lujan cases. Lujan was remarkable in exercising restraint in setting forth the
minimum requirements of injury in fact, traceability and redressability. These
requirements were demanded under the separation of powers doctrine because
Congress and the Executive are the appropriate executors of public values and
interests, likened to generalizable injury by Justice Scalia. Bennett and Steel,
supra, both employed the Lujan requirements. Bennett returned to the zone of

interests test of Data Processing to confer standing, exercising restraint in
following precedent. Steel Co. denied standing under Lujan, finding the requested
remedies failing the redressability prong.
Lujan II appeared detrimental to environmental standing with its
requirement of showing a concrete injury. However, the Court appears to be
returning to a more expansive approach in citizen suit standing in this century
with the decision in Friends of the Earth, supra. Contrary to the holding in Steel
Co., the Court found civil penalties to satisfy the redressability requirement of
Lujan II. This precedential activism in addressing ongoing violations of
environmental regulation under the CWA indicates the Courts willingness to
incorporate the Lujan II standing requirements into citizen suit standing. Friends
of the Earth accentuates the original intent of the citizen suit to supplement
environmental enforcement by administrative agencies.
Regulatory Takings
The jurisprudence of regulatory takings with respect to environmental
regulation emphasizes the delicacy in the balance of power between the rights
imbued to a property owner and the power of government regulation to achieve
legitimate land use purposes. In this analysis, the Court engaged a large degree of
legal conservatism in approaching the issue. The introduction of regulatory
takings in Penn. Coal, supra, incorporated property rights into the question of just
compensation when regulation effects a taking of property. In this topic, the
value of property rights is constitutionally protected, and the Court has struggled
to maintain that protection under contemporary necessities of environmental
regulation. Penn. Coal represented restraint in distrusting government power to
totally usurp the rights of property owners under the guise of regulation.

However, the introduction of the diminution in value test evidenced judicial
creativity activism in introducing a balancing test to address competing interests
of private property owners and government regulation.
Answering the concerns of potentially intrusive government regulation
under environmental legislation and concurrent regulation was the Courts 1978
decision in Penn. Central. In Penn. Central, the Court exercised restraint in
declining to adopt a categorical rule, instead introducing a three factor balancing
test to address regulatory takings challenges. The Penn. Central case-specific
factors for analysis continue to be the Courts foundation for review of regulatory
takings. The 1980s jurisprudence focused first on the property rights themselves
in Andrus and Kaiser, supra. Throughout the 1980s, the Court would resist
adopting any categorical rule in takings challenges, adhering to the Penn. Central
factors to determine whether a taking had occurred.
In 1992, the Courts decision in Lucas, supra, departed from this
established policy of the Courts in fashioning a categorical rule applied to total
deprivation of use in private property. The rule represented remedial activism by
the Courts in the extraordinary circumstance of total taking of property use. In
Dollan, supra, the Court engaged in remedial activism again by imposing a new
evidentiary burden of rough proportionality on the government in consideration
of the effects of zoning and permit conditions on the use of private property.
However, the Court returned to its exercise of restraint and application of the
Penn. Central test in Palazzolo, reinforcing the use of a balancing test rather than
creating categorical rules to address regulatory takings. In 2002, the Courts
narrow holding of Tahoe Sierra comported with its return to restraint and analysis
on case-specific facts under the Penn. Central factors, suggesting that
extraordinary cases such as Lucas do weigh heavily in the Courts role of

maintaining a status quo between the duties of government and those
constitutionally protected interests in property rights by individuals.
In Section II, supra, the methodological framework for determining levels
of judicial activism and restraint was set forth to answer the following questions:
1. What is the role of the United States Supreme Court in environmental
policy implementation, and how has it changed over time?
2. What are some of the factors that seem to account for these changes?
In each of the topics analyzed above, the Court exhibited a pattern of legal
conservatism, or restraint, in order to maintain an equal footing between the
parties in interest under the principles of constitutional doctrine. However, each
topic followed its own temporal development. First, judicial review in
environmental regulation was fashioned under Overton Park and the APA,
witnessing a sea change in the late 1970s with Vermont Yankee, struggling in the
early 1980s to incorporate the concept of valuing human life as an environmental
issue in Benzene, and returning to early commerce clause arguments of
local/federal balances of power at the turn of the century in SWANNC. Second,
the standing doctrine underwent significant expansion to include the citizen suit in
administrative processes involving environmental regulation in Scenic Hudson
and Sierra Club in the 1970s, with the 1980s foreboding the restriction of the
doctrine in Allen. The shift towards conservatism came with Lujan II,
establishing what appeared to be a strict test for environmental injuries, but the

Court signaled an incorporation of environmental injury into the Lujan framework
with Friends of the Earth. Finally, the regulatory takings topic expanded to
include property rights as compensable interests in the early 1920s with Penn.
Coal, establishing a balancing test in the 1970s with Penn. Central, and struggling
since to avoid categorical rules that would define regulatory takings with the
exception of Lucas.
Throughout all topics of environmental jurisprudence, the Court has
engaged in both judicial activism and restraint. The Court has engaged both to
guide the development of environmental jurisprudence and regulation in a fashion
commensurate with traditional concepts under constitutional doctrine. Injudicial
review of agency action, the Court used activism principles to incorporate the
hard look doctrine by limiting its power to review agency action under separation
of powers and federalism principles to preserve original boundaries of power in
the tripartite system of American governance. Overton Park and its progeny
issued the requirements of informal rulemaking processes by administrative
agencies according to congressional limitations imposed under the APA. Further,
Skidmore and its progeny illustrated judicial limitations for agency interpretations
of environmental legislation that would be entitled to deference.
At the turn of the century, the Court indicated with the opinions of
Christensen, Mead and SWANNC, supra, a willingness to merge the standards of
deference under Chevron and Skidmore to provide another balancing test that the
Court will use in reviewing agency interpretations. Both SWANNC and Alaska
support the argument that the Court will continue to avoid the question of whether
environmental legislation and regulation are proper exercises of federal authority
under the Commerce Clause. These decisions are reminiscent of interpretations
of federalism and commerce prior to the New Deal in Cooley and Carter, supra.

The Court seems to be returning to distinguishing between traditional federal and
state power boundaries to determine whether an agency interpretation will be
upheld under the Commerce Clause.
Citizen suit standing jurisprudence has also followed a similar usage of
activism and restraint by the Court. The incorporation of the citizen via Storm
King and Sierra Club in the early 1970s predicated the use of the citizen suit
provision by Congress. The political benefit of involving the public as private
attorneys general was endorsed by both the judiciary throughout the 1970s and by
Congress by the inclusion of provisions in almost every piece of environmental
legislation. However, the retrenchment of the standing doctrine in citizen suit
concerns in the 1980s and early 1990s with Allen and Lujan //reasserted the
primacy of government and agency as the primary enforcers of the law. While the
Court had infused the citizen as a necessary participant in environmental
administrative processes, it returned to the separation of powers principles to
maintain citizen suit inclusion as primarily a supplemental tool of oversight and
enforcement. Finally, Friends of the Earth used activism principles to introduce
civil penalties as satisfying the redressability prong of Lujan. In effect, the Court
has maintained the citizen as an integral participant in the processes and
adjudications associated with environmental regulation as a whole, while limiting
their significance based on separation of powers under constitutional doctrine.
Finally, the regulatory takings inquiry has not followed a pattern of
conservatism. Rather, regulatory takings has been guided by the constitutional
principles of property and the balance of power between the property owner and
the government that may subject a parcel of property to regulation. Penn. Coal
first recognized this problem as a consequence of regulation, instituting a
balancing test instead of a categorical rule to determine whether a regulation goes

so far as to effectuate a taking. Penn. Central embraced this approach by
establishing the three factor balancing test that continues to lead the Courts
inquiries in regulatory takings. And while Lucas seemed to invite categorical
rules in regulatory takings jurisprudence, the Court has admonished the ruling as a
very narrow one, returning to the construct of Penn. Central in Palazzolo and
Tahoe. This area of environmental jurisprudence has been chaotic, not following
a specific pattern, but instead adhering to that balance of power between owner
and regulator that is constitutionally protected.
The result of the Courts activism and restraint in these topics is a
jurisprudence that reflects the Courts search for an equilibrium to balance
competing forces and institutions. The competing forces in environmental
jurisprudence are values associated with environmental protection and citizen
involvement in the administrative process in contrast to long established values of
separation of powers, federalism and property rights. The institutions are the
branches of federal government and the regulatory state. The underlying
foundations of the Constitution, the separation of powers doctrine, and federalism
concerns place the Court in a powerful position as the ultimate arbiters of the law.
In this analysis, the Court is not concerned with environmental protection per se,
but the validity and fit of environmental law and regulation into the constitutional
construct. However, some of the most beneficial innovations injudicial review
and standing have emerged from environmental decisions, designating
environmental concerns themselves as fundamental aspects of the Courts
justifications of constitutional doctrine.
The contemporary challenges of environmental regulation pose significant
questions in how to define the Courts role. For the environmentalist, the ideal
role would be a more active one in providing guidance and leadership to promote

clarity in environmental law that it presides over. However, in this analysis, the
Court has preserved traditional notions of the balance in federal and state power
and the separation of powers doctrine. Environmental jurisprudence incorporates
those doctrines into its considerations of judicial review, citizen suit standing, and
regulatory takings. Innovations in each issue pertaining to environmental issues
have been set in place by the use of activism and endured through the course of
four decades as a tenet of federalism and separation of powers. The end result is a
jurisprudence that incorporates the competing values to ensure that each interest is
balanced under the equilibrium of existing institutions. The role of the Court in
environmental jurisprudence, then, is a function of its powers under Article III of
the Constitution.
In terms of environmental law, whether protection is afforded to the
environment depends on the method of protection and its ability to comport with
traditional doctrine in constitutional law. This is the power of the judiciary in
framing and deciding environmental questions. Like the admonition of Justice
Marshall in Marbury v. Madison, the Courts prescribed role under the
Constitution is to say what the law is. In conjunction with this statement of
constitutionally delegated power, the Courts recent Commerce Clause
jurisprudence outlined in Lopez, Morrison, and SWANCC suggests that the Court
limit its influences on environmental regulation, taking its signals from Congress
to interpret legislation and following precedent in accordance with evolving
values of society. More importantly, the question of constitutional viability under
the Commerce Clause that the Court refuses to consider enforces the Courts
approach to preserving precedent and federalism to protect the balance of power
between federal and state governments. These motions by the Court make the
Commerce Clause cases extremely important in environmental regulation,

because the clause is the primary source of power for the administrative state to
regulate on a national level. The Courts use of activism and restraint operates to
ensure the constitutionality and legality of environmental law, introducing vital
interpretations of its own power and the power of other branches of government
where the opportunity is presented in litigation.
This conclusion ensures institutional equilibrium in maintaining a balance
between traditional principles of constitutional doctrine and contemporaneously
embracing new values associated with environmental protection. Should the
Court take on a greater role, it would potentially upset that balance, substituting
its judgment for that of the legislature or the agency. Such a move would place the
Court in a precarious position of rewriting the law, contrary to constitutionally
delegated power. However, the Court rarely gives up its power of review,
ensuring its own survival as an integral component of legislative and
administrative processes. This power is the lynchpin of judicial review, and will
remain a viable oversight mechanism employed by a Court that has the potential
to carry great weight and use activism to shift directions in environmental policy.
The Courts role is ensuring that administrative processes comply with the
law and interpreting legislation in accordance with the Constitution and
precedent. In all, the Court incorporates new concepts of regulation and
legislative processes into the fabric of American government to establish a

respective division in responsibility between the branches of government, federal
and state/local, and the agencies responsible for carrying out legislative mandates.
This research found that the Court will rely on customary principles in engaging
injudicial review. In addition, the Court has also implied a merger between
environmental values and the context of the constitutional construct under which
it operates. The latest indications of the Court show its willingness to return to
the federalism argument and the assimilation of specific environmental injuries as
redressable under Lujan.
The recommendation of the research is for agencies and citizens to direct
their efforts towards complying with the standards set forth in precedent, focusing
on the federal/state nature in challenging or supporting statutory interpretation and
identifying environmental injuries that would satisfy redressability under Lujan.
Such challenges that receive review by the Court may force it to further establish
the contours of its justification for reliance on constitutional doctrine. As a
policy-making Court, the opinions of the Court produce incentive for legislative
action, much like Congress overriding the Gwaltney decision by with respect to
the Clean Air Act. However, this action-forcing mechanism can work both ways,
as congressional action ultimately brought about the extinction of the species at
issue in TV A. Nevertheless, environmental issues prove a ripe ground for judicial
action, as evinced by the activist decisions of Overton and TV A, and those
restrictive opinions of Vermont Yankee and SWANCC.
The two specific doctrines focused on in this research were separation of
powers and federalism. Because of the Courts return to traditional considerations
of national and local distinctions in commerce authority suggested by the
SWANCC opinion, the states will most likely play a greater role in future
directions of environmental policy. Further research of those environmental

opinions that concern the delegation of power doctrine should be examined to
provide the state regulatory dimension. Research regarding this doctrine will
provide further analysis on the Courts role in how power is delegated and the
concomitant role of the state and appellate courts influence on environmental
policy. Finally, the research also illuminates that while Supreme Court decisions
may influence policy, reliance on judicial resolution of environmental issues may
not produce desired results of environmental protection. Further research with
attention to appellate level treatment of Supreme Court precedent is recommended
to flesh out the overall effect of Supreme Court precedent with respect to these
topics. Specific attention should be paid to the D.C. Circuit Court of Appeals
because most environmental statutes require suit to be brought in that Court. In
addition, case histories of the more recent cases of Christensen, SWANNC,
Friends of the Earth, and Tahoe would provide insight into lateral effects of the
Courts opinions. Supplementing this research with a similar analysis of appellate
opinions will enhance the conclusion that the Supreme Court is directing a lesser
role for federal authority in environmental policy direction.

The natural environment played a significant role in the creation of the
federal government and continues today as a controversial subject for the
federal government and the administrative state. In this analysis, the Supreme
Court opinions regarding three topics of interest were reviewed to discern a
pattern of legal conservatism. The methodology of analysis coupled principles
of activism with the Burkean typology of judicial restraint to achieve this. The
topics of judicial review of informal agency action, citizen suit standing, and
regulatory takings were reviewed under this framework. The Court employed
activism and restraint in all topics, guiding the development of the issues in the
environmental context under the separation of powers and federal principles.
The usage of activism and restraint by the Court reflects attempts by the Court
to achieve an institutional equilibrium, ensuring that all interests are adequately
represented in the equilibrium of existing institutions. The Court is concerned
with this equilibrium and not with environmental protection per se but its
incorporation into the constitutional construct as a whole. The research
recommends focusing legal challenges on the federalism and environmental
injury as a potential action-forcing mechanism for clarification and guidance by
Congress. Further research is also recommended to supplement this analysis to
round out the role of the Court in environmental regulation. Finally, despite the
potential for these recommendations to produce small results, environmental
issues have been and remain an integral area of law that shapes and defines the
contours of American governance.

I Marburyv. Madison, 5 U.S. (1 Cranch) 137 (1803).
A Content Analysis is defined as a systemic examination of the contents of a particular body of
material to identify patterns, themes, and/or biases. Leedy, Paul D. (2001) Practical Research,
Planning and Design (Seventh Ed.). New Jersey: Prentice-Hall, Inc.
3 Many environmental statutes direct the method of judicial review of agency action. See, e.g.,
Toxic Substances Control Act, 15 U.S.C. §2619(2003); Surface Mining Control and Reclamation
Act of 1977,30 U.S.C. §1270(2003); Clean Water Act of 1976, 33 U.S.C. §1365(2003); Marine
Protection, Research and Sanctuaries Act of 1972,33 U.S.C. § 1415(g)(1)(2003); Safe Drinking
Water Act, 42 U.S.C. §300j-8(2003); Noise Control Act of 1972,42 U.S.C. §4911(2003); Energy
Policy and Conservation Act, 42 U.S.C. §6305(2003); Solid Waste Disposal Act, 42 U.S.C.
§6972(2003); Clean Air Act, 42 U.S.C. §7604(2003); Comprehensive Environmental Response,
Compensation, and Liability Act of 1980,42 U.S.C. §9659(2003); Powerplant and Industrial Fuel
Use Act of 1978,42 U.S.C. §8435(2003); Emergency Planning and Community Right-to-Know Act
of 1986,42 U.S.C. §8435(2003); Outer Continental Shelf Lands Act, 43 U.S.C. §1349(2003);
Hazardous Liquid Pipeline Safety act of 1979,49 U.S.C. §2014(2003). All major environmental
laws authorizes a citizen suit except for the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C. §§ 136 et seq.(2003).
4 5 U.S.C. §§551 et seq. (2003). The judicial review provisions of the APA are found at 7 U.S.C.
§§701-706 (2003).
5 7 U.S.C. §706 (2003).
6 Boer, Tom J. Does Confusion Reign at the Intersection of Environmental and Administrative
Law?: Review of Interpretive Rules and Policy Statements Under Judicial Review Provisions such
as RCRA Section 7006(a)(1), 26 B.C. Envtl. Aff. L. Rev. 519, 523 (1999).
7 U.S. Const, art. III. (2004).
8 See Sunstein, Cass R. Whats Standing After Lujan? Of Citizen Suits, 'Injuries,' and Article 111, 91
Mich. L. Rev. 163, 168-169 (1992).
9 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
10 Sunstein, supra.
II U.S. Const, amend. V.
12 Meltz, Robert. The Takings Issue: Constitutional Limits on Land-use Control and Environmental
Regulation. Island Press: Washington, D.C. 1999. p. 130.

13 438 U.S. 104(1978).
The framework for this research was influenced by a 1987 case study of the Waukegan Harbor
litigation in the Seventh Circuit. Glicksman, Robert L. A Retreat from Judicial Activism: The
Seventh Circuit and the Environment. 63 Chi-Kent L. Rev. 209 (1987). The study concluded that
while the Seventh Circuit did not point uniformly in one direction, the activity of the circuit reflects
a decidedly contrasting and restrained approach to environmental regulation than that of the early
activist decades of the 1960s and 1970s. Glicksman p. 225. Glicksman defined judicial activism is
as the degree and number of techniques imposed by the courts via caselaw to protect intended
beneficiaries of an environmental statute to prevent subversion of the legislative scheme by the
implementing agency, p. 211-13. Conversely, institutional restraint was defined as those limited
imposed by the courts to prevent judicial review from substituting notions of public policy for those
of the legislation or the agency implementing a regulatory statute via its legislative mandate.
Because there is debate as to whether Glicksman and Levys research is sound with respect to their
definitions, the operational definitions of this research have been modified in an attempt to account
for this. See Chae, Young-geun. The U.S. Supreme Courts Policy Preference and Institutional
Restraint in Environmental Law. 7 Wis. Envtl. L. J. 41 (Winter, 2000). (challenging Glicksman and
Levys findings that Supreme Court precedent dominates environmental policy direction under
Chevron principles).
lsMarshall, infra, p. 1217 n. 3.
16 Canon, Bradley C. A Framework for the Analysis ofJudicial Activism, in Supreme Court
Activism and Restraint (Stephen C. Halpem and Charles M. Lamb, eds., 1982).
17 Young, Ernest A.. Judicial Activism and Conservative Politics. 73 U. Colo. L. Rev. 1139 (Fall,
2002). See also Marshall, William P. Conservatives and the Seven Sins of Judicial Activism. 73
U. Colo. L. Rev. 1217. (Fall, 2002).
18 Marshall, supra, p. 1220. There is a seventh sin of activism: Partisan Activism, or the use of
judicial power to accomplish plainly partisan objectives. This principle of activism will not be used
in this research, because, as Marshall has recognized, such a method of activism is extremely hard to
prove under either qualitative or quantitative method. The Senate Judiciary Committee has also set
forth characteristics of judicial characteristics : a tendency by the judiciary toward problem-solution
rather than grievance solution; a tendency by the judiciary to employ the individual plaintiff as a
vehicle for die imposition of far-reaching orders extending to broad classes of individuals; to
impose broad affirmative duties upon governments and society; losing requirements such as
standing and ripeness; to impose itself upon other institutions in the manner of an administrator with
continuing oversight responsibilities. Senate Judiciary Committee, Judicial Nominee Questionnaire.
Marshall, supra.
19 The terms judicial restraint and judicial conservatism are used interchangeably in this research.
20 Young, supra, at p. 1183.

22 See Glicksman, supra, p. 209 (Whereas the federal courts in the 1960s and early 1970s stressed
their obligation to prevent executive branch subversion of the legislative will, more recent decisions
reflect the belief that an restrained judiciary actively seeking to implement its own notions of public
policy infringes improperly upon legislative and executive authority.; Percival, Robert V. et al.
Environmental Regulation: Law, Science and Policy, 4th Ed. Aspen Publishers: New York (2003),
p. 94 (Beginning around 1991, the pendulum that swung so powerfully toward environmental
protection during the 1970s and 1980s appeared to be moving in the other direction with a Congress
and a judiciary decidedly more skeptical about environmental regulation.); Shults, Kristen M..
Comment: Friends of the Earth v. Laidlaw Environmental Services: A Resounding Victory for
Environmentalists, Its Implications on Future Justiciability Decisions, and Resolution of Issues on
Remand. 89 Geo. L. J. 1001,1010(2001) (When [Lujan] was decided in 1992, many critics agreed
that a significant shift in the law of standing had occurred and the place of the citizen in
environmental and regulatory law...had been drawn into sharp question.).
23 Under the Articles of Confederation, the federal government was authoritatively weak, and
represented the collective interests of the individual and more powerful state governments. See
Andrews, Richard N.L. (1999). Managing the Environment, Managing Ourselves: A History of
American Environmental Policy. Yale University Press: Connecticut, p. 56-59.
24 The lands would be disposed of for the common benefit of the United States, settled and formed
into the distinct republic states, eventually becoming states of the Union, and granted and settled at
such times and under such regulations as shall hereafter be agreed to by the United States in
Congress assembled. Andrews, supra, p. 56, and United States Public Land Law Review
Commission, 1970.
The contemporary military presence and influence in environmental policy and management is also
an outgrowth of early policy. Wartime shortages of lead for ammunition and other supplies led to
natural resource reconnaissance surveys, alongside military strategizing for defense of the nation
through increasing knowledge of the terrain. The Land Ordinance of 1785 provided the basis for
early governmental geographic exploration. In addition, the formation of an army corps of
engineers commenced to construct roads, soldiers quarters, and fortifications to clear navigational
obstructions from harbors. Hence the origins of the United States Coast and Geodetic Survey and
the involvement of the United States Army Corps of Engineers in water resource development and
regulation. See Andrews, supra, p. 54.
25 Andrews, supra, p. 58. As early as 1842, the states were found by the courts as the successor to
the English Crowns authority over fish and wildlife, navigable waters, submerged lands, and other
natural resources. See p. 57. The original perception that the states held power over its natural
resources and the management of same underlies many arguments within modem environmental
26 U.S. Const, art. I, § 8 (2003).

27 U.S Const, art. IV, §3 (2003).
28 U.S. Const, art. VI (2003).
29 For a more detailed discussion of the Property and Supremacy Clauses and the Fourth and
Fourteenth Amendments, see Andrews, supra, p. 51-70.
30 U.S. Const, art I, §8, cl. 18. However, debate does exist as to whether the administrative state is
unconstitutional per se under the Necessary and Proper Clause. See Zellmer, Sandra B. The Devil,
the Details and ihe Dawn of the 21s' Century Administrative State: Beyond the New Deal. 32 Ariz.
St. L.J. 941, p.951 n. 37 (Fall 2000).
31 For a detailed discussion of President Franklins New Deal and accompanying legislation, see
Bruce Ackerman: We the People: Transformations (1998); Alan Brinkley, The End of Reform: New
Deal Liberalism in Recession and War (1995).
32 The traditional model of administrative law is comprised of four main elements:
1. The legislature must authorize administrative sanctions on private persons through
rules or standards that limit agency discretion.
2. The procedures used my the agency must tend to ensure agency compliance with
legislative directives.
3. Judicial review must be available to ensure that agencies use accurate and impartial
decision-making procedures and comply with legislative directives; and
4. Agency processes must facilitiate the exercise of judicial review.
See Breyer, Stephen G. et al. Administrative Law and Regulatory Policy: Problems, Text, and
Cases, (Fifth Ed.) New York: Aspen Law and Business. (2002). p. 20.
33 The commerce clause and the nondelegation doctrine emerged as the vehicles of choice for
striking down New Deal legislation by the Court. See Zellmer, supra, p. 959. The nondelegation
doctrine states that the power of the legislative, being derived from the people by a positive
voluntary grant...can be no other than what the positive grant conveyed, which is being only to
make laws, and not to make legislators. Zellmer, supra, quoting John Locke, Second Treatise on
Civil Government, §§140 (C.B. Macpherson ed, 1980). The nondelegation doctrine has specific
relevance to agency power because the legislative branch may not transfer authority that it itself
does not hold under the enumerated powers of the Constitution.
The Schechter decision, infra, personified the use of the nondelegation doctrine by the court in
1935, holding that the Live Poultry Code of the National Industrial Recovery Act (NIRA), as
promulgated under 15 U.S.C. §703 (1935) violated nondelegation principles. The Court held that
the Code violated the doctrine by allowing the President unfettered authority to determine what to
do for the betterment of business, constrained only by the extent of the federal commerce power.
295 U.S. at 553 (Cardozo, concurring). The Court also invalidated the petroleum provision of the
NIRA, 15 U.S.C. §709(c)(l 935), in Panama Refining Co. v. Ryan, 293 U.S. 388,415 (1935).

Similarly, the court invalidated the Bituminous Coal Conservation Act of 1935,49 Stat. 991, under
due process and nondelegation principles in Carter v. Carter Coal Co., infra, 298 U.S. 238 (1936).
34 President Roosevelt bolstered his tactic by citing an overwhelming caseload for the Court.
The judicial reforms called for the addition of one justice to the Court for every current justice that
had reached the age of 701/2 but had not retired. See The American Experience: President
Roosevelt. PBS Organization presented, found online at froosevelt/f roosevelt politics.html. Last visited
May 1,2004.
35 Administrative Procedure Act of 1946,5 U.S.C. §§551 et seq. (2003).
36 Plater, supra, p. 376.
37 Sunstein, Cass R. Law and Administrative After Chevron. 90 Colum. L. Rev. 2071,
2080-2081. (Dec. 1990). Hereinafter referred to as Cass and Chevron.
38 The most notable federal statutory efforts were aimed at development and subsequent
conservation of public natural resources, reflecting a desire to promote commerce, as opposed to
environmental protection. E.g., The Rivers and Harbors Act of 1899,33 U.S.C. §§301 et seq.
(1958), and the Pure Food and Drug Act of 1906, Pub. L. No. 59-384,34 Stat. 768 (1906), and the
Federal Insecticide Act of 1910, Act of April 26,1910, ch. 191,36 Stat. 331, repealed 61 Stat. 163,
172 (1947) were enacted not to protect the public health, but instead to prevent consumers from
being defrauded by products that were not what they had been advertised to be. Percival, infra.
39 Percival, Robert V. et al. Environmental Regulation: Law, Science and Policy, 4th Ed. Aspen
Publishers: New York (2003), p. 86.
40 For example, state smoke abatement ordinances failed to specify proscribed emission standards.
Percival, supra.
41 The Water Quality Act of 1948, ch. 758,62 Stat. 1155, as amended by the Clean Water Act of
1977, Pub.L. 95-217,91 Stat. 1567, 1575 (current version at 33 U.S.C. §§1251 et seq. (1987),
provided states with grants for water pollution control.
42 Pub. L. No. 88-206, 77 Stat. 393 (1963).
43 Percival, supra.
44 The beginning of this trend in judicial activism is attributed to the Supreme Courts decision of
Brawn v. Board of Educ., 347 U.S. 483 (1954). See Levy, Richard E. and Robert L. Glicksman.
Judicial Activism and Restraint in the Supreme Courts Environmental Law Decisions. 42 Vand. L.
Rev. 343, 355. (March, 1989).

45 See Plater, Zygmunt J.B. From the Beginning, A Fundamental Shift of Paradigms: a Theory and
Short History of Environmental Law. 27 Loy. L.A. L. Rev. 981,982. (Spring, 1994). (Hereinafter
referred to as Platers Paradigm).
46 Rachel Carson, Silent Spring. New York: Houghton Mifflin Co. 1962. Carsons argument states
that while humans naturally hy to maximize their utility, a society that wishes to survive must
identify and take comprehensive account of both negative and positive effects of that behavior.
Carsons critique was coupled with Professor Ronald Coasess Problem of Social Cost, recognizing
social cost extemalizations in the market. Coase, Ronald H. The Problem of Social Cost. 3 J.L.
& Econ. 7(1960). See also Platers Paradigm, supra.
47 In response to Silent Spring, the Environmental Defense Fund (EDF) was formed in 1967 in
efforts to see DDT banned as a pesticide. The Natural Resources Defense Council also formed as a
party in the classic Storm King case, discussed infra.
48 354 F.2d 608 (2d. Cir. 1965). In the early 1960s, Consolidated Edison (Con Ed), New York
Citys regional electric supplier, faced increased demands for power from residential expansion, air
conditioning, and consumption-favored rate schedules. Con Eds proposed solution to the Federal
Power Commission (FPC) was the construction and operation of a hydroelectric pumped storage
plant, to be placed upon Storm King Mountain at the center of the Hudson Highlands, an area
renowned for unique scenic beauty. 354 F. 2d at 613. Despite the promising results Con Ed would
realize from the construction of the project, in 1963 a group of residents formed the Scenic Hudson
Preservation Conference in opposition to Con Ed. Under the Federal Power Act, 16 U.S.C. §791a et
seq. (2003), the group intervened in the permit process, asserting aesthetic and cultural injury. By
the end of 1964 FPC permit approval was pending, and construction of the Storm King project
appeared to be a reality. However, the discovery of the Hudson fishery estuary that produced over
sixty percent of American striped bass revived the struggle to prevent the Storm King project.
When the FPC construed the fishery evidence as irrelevant and granted the Storm King license to
Con Ed in March, 1965, Scenic Hudson appealed to the Second Circuit. See also Houck, Oliver.
Unfinished Stories. 73 U. Colo. L. Rev. 867, 870. (Summer, 2002).
The Storm King controversy involved several decisions over the course of nearly two decades,
ultimately ending in the Hudson River Peace Treaty of 1980. Con Ed surrendered its Storm King
license and donated the property in question for public recreational use. Houck, p. 878-879. For a
historical summary of the Storm King project, see also John Cronin & Robert F. Kennedy, Jr., The
Riverkeepers 21 (1997).
49 Storm King, 354 F. 2d at 615 and collecting cases. The court was asked to consider whether the
citizens of the Scenic Hudson Preservation Conference were entitled to standing and whether a
power plant permit as issued by the FPC complied with the mandates of the Federal Power Act.
50 Id. at 616. The court also remanded the case to the Commission, holding that the permit failed to
consider feasible alternatives to meeting its power demands consistent with the Act, including the