GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2006

Status

Accepted

Abstract

Chief Justice William H. Rehnquist was uniquely situated to have a profound impact on the development of federal environmental law - both because of the overlap of his tenure with the development of the field of environmental law and because of his four-decade tenure on the U.S. Supreme Court, more than one-half of which was as Chief Justice. Before his death on September 3, 2005, Rehnquist heard the vast majority of the Court`s environmental cases during the modern environmental era, penning opinions in 25% of them, and affording him an opportunity to shape environmental law, especially during its formative years, that no Justice is likely to match. This Article discusses how Justice (and then Chief Justice) Rehnquist interpreted federal constitutional and public law in the opinions he wrote in environmental cases. It concludes that Rehnquist`s environmental opinions reflect a three tiered agenda. First, if a case involved a constitutional or statutory property rights question, Justice Rehnquist almost always chose to protect property rights over competing environmental concerns. Second, in the absence of a property rights issue, Rehnquist almost always decided cases so as to protect state sovereignty, sometimes but not invariably with pro-environmental results. Third, in cases lacking a property rights or state sovereignty component, he almost always decided them in a way that curtailed federal power, and with it, the effectiveness of environmental law. The Article, which is part of a larger ongoing study of Justice Rehnquist`s environmental law jurisprudence, explores the extent to which Justice Rehnquist's three-tiered approach has already weakened environmental law and whether that approach is likely to contribute to further diminishment of effective environmental protection under the pollution control and natural resource management legislation in the future.

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