A while back I mentioned an Atlantic Monthly essay claiming that the real danger of an (even more) conservative federal judiciary is to environmental regulation.
Jonathan H. Adler has a paper in the Iowa Law Review arguing that the danger is minimal, and mainly at the margins, and perhaps not such a bad thing. The abstract is reprinted on Commons, if you want a capsule summary. I can’t say I read all 95 pages (!), but I believe the relevant stuff comes toward the end. Here’s a long exerpt:
Most discussions of the environmental impact of the Supreme Court’s federalism jurisprudence focus on the extent to which judicially enforced constraints on federal regulatory power will limit the federal government’s ability to address environmental concerns. This is a valid concern. At the same time, it must be remembered that expansive federal authority is not inherently protective of the environment. Rather it is a double-edged sword. Just as broad federal authority can be used to protect environmental concerns, a powerful federal government has the ability to cause substantial amounts of environmental harm.
The nation’s history is littered with examples of environmental degradation directed, funded, or otherwise encouraged by the federal government. Many of our country’s present environmental struggles are the legacy, at least in part, of ill-conceived (albeit sometimes well-intentioned) federal programs. Environmental harm brought about by federal environmental programs span the spectrum from pollution at federal facilities and the mismanagement of federal lands to ecologically destructive public works projects and wasteful subsidies to farmers and businesses. Subsidies to farmers have encouraged the draining of wetlands and waste of water resources; subsidies to ranchers have depleted populations of wild species; subsidies to corporations lower the costs of polluting fuel sources; and subsidies to fishermen contribute to overfishing.
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Most of the environmental harm to be laid at the federal government’s feet is the result of various spending programs, yet it is the federal government’s regulatory authority that is most threatened by the Court’s federalism jurisprudence, particularly in the Commerce Clause context. Therefore, it is possible that limits on the scope of federal authority will affect the federal government’s ability to do environmental good far more than it will curtail the federal government’s penchant for encouraging environmental harm. Yet it would be a mistake to assume that federal regulations, including federal environmental regulations, are not themselves responsible for some degree of environmental harm.
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The federal government is not the only provider of environmental protection. Many of today’s federal environmental programs were preceded by–if not modeled on–state efforts.579 States regularly adopt environmental measures that are more protective than the federal “floor,” and most innovative environmental reforms have their roots in state and local efforts. Yet existing federal programs often obstruct or discourage state reforms.580 In particular, the existing regulatory system is stultified and inhibits the evolution of policy measures to account for new information and knowledge or changing circumstances. 581 Even so-called “cooperative” efforts, under which the federal government funds approved state environmental programs, can distort state and local priorities, redirecting resources from more to less urgent environmental matters. Insofar as the Court’s articulated federalism principles reduce the federal government’s ability to dictate environmental policy from Washington, D.C., states will have greater opportunity to pick up the slack.
