Chapter 5: Environmental federalism and addressing EJ concerns
Over the past several decades, there has been a secular and significant trend in US jurisprudence toward increasing federal authority over a wide range of health, safety and general welfare issues.1 In fact, there was a nearly complete absence of judicial checks on federal power between 1937 and 1995 (Kramer, 1994). This extension of authority was largely accomplished through an expansive interpretation of the commerce clause,2 the constitutional provision granting Congress the power to regulate interstate commerce, and, more contentiously, the dormant commerce clause,3 a judicial restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. Recently, however, more circumspect legal analysis has challenged this trend, beginning in 1995 with the ‘Rehnquist Court’ and continuing to the present day. By a narrow majority, recent Supreme Court rulings have held that the federal government does not have the authority to regulate activities not directly related to the channels of commerce, the instrumentalities of commerce, or an action that substantially affects interstate commerce.4 This ‘New Federalism’ was further bolstered by President Clinton’s Executive Order5 reinforcing the defer- ence that should be afforded to state governments, mandating that the federal government grant states the maximum administrative discretion possible, and, where possible, that it defer to the states when establishing regulatory standards. In determining the appropriate allocation of authority between the federal government, on the one hand, and state, regional, and local governments, on the other, policymakers and the courts face something of a Hobson’s choice.
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