All that Glitters is Not Gold: A Congressionally-Driven Global Environmental Policy

Recent developments in U.S. constitutional law challenge the U.S. Congress’s ability to lead on environmental matters. First, there have been major constitutional challenges to the domestic environmental regulatory authority of Congress. Through recent decisions, the Supreme Court has resurrected a pro-state doctrine of federalism. The Court’s federalism could result in a restrictive reading of the Commerce Clause that has, in the past, been used as a constitutional justification for federal regulatory authority on important national policy matters. Hence, this new federalism may challenge the federal government’s authority to regulate environmental matters at the state level. Second, there is a major constitutional challenge to Congress’s financial ability to regulate environmental protection. Through a recent Supreme Court decision, constitutional constraint on federally-created environmental regulations has been established, based upon the Fifth Amendment’s Takings Clause. The Supreme Court has created a constitutional restriction on congressionally-driven environmental policy. The Court decided that federal wetlands legislation may constitute “takings,” protected by the Fifth Amendment, for which the federal government must compensate affected property owners. This constitutional interpretation could add unanticipated costs to federal environmental regulation. Third, there is a major challenge to the sovereignty of Congress over environmental protection. Because the law of international treaties is supreme, according to the Constitution, congressionally-generated environmental policy can be superseded by international agreement. Over the last several years, international environmental treaties have increased. The most recent “treaty,” the Kyoto Protocol, seeks to address global warming by reducing greenhouse gas emissions. Effectively, it creates domestic environmental “law,” without the benefit of full congressional debate, review, and enactment. These three recent constitutional developments, including the Supreme Court’s challenge to the Commerce Clause, the Supreme Court’s application of “takings” analysis to federal wetlands legislation, and the use of international treaties to dictate U.S. environmental policy, are very disturbing. Unchecked, they would virtually destroy the U.S. Congress’s sovereignty over environmental policy. This would result in a major change in the landscape of U.S. environmental policy, both domestically and abroad. This article raises the question: How should the United States develop its environmental policy? It analyzes three different policy-making paradigms: (1) the “federalism” paradigm, wherein individual states develop their own environmental policies; (2) the “takings” paradigm, wherein environmental regulations are analyzed as property rights under the Fifth Amendment, requiring just compensation; and (3) the “treaty” paradigm, wherein international agreements determine U.S. domestic environmental policy. In analyzing the different policy-making paradigms, this article looks critically at U.S. environmental policy development, focusing on the role the U.S. Congress plays in developing environmental policy. This article evaluates how recent constitutional developments threaten the sovereignty of the U.S. Congress as the major environmental policy driver in the world. In addition to analyzing the restrictions on Congress’s authority to determine environmental policy, this article suggests what direction Congress should take to reestablish its leadership role. It looks closely at the federal government’s regulation of U.S.-based companies’ environmental behavior abroad. The overarching issue of what environmental standards U.S. corporations should adopt when doing business abroad will be explored, in conjunction with a description of recently developed standards for addressing international environmental protection. This article proposes the development of a market-driven international corporate environmental management program. Specifically, it suggests that the U.S. Congress pass legislation requiring U.S.-based companies to comply with U.S. environmental laws, not only when operating domestically, but also when operating abroad or internationally, creating a Global Environmental Protection Act (GEPA). As a result, the United States will re-establish environmental policy sovereignty, domestically, and internationally.