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For federal and state legislators .seeking legal solutions to environmental problems, "constitutional law" is a part of "environmental law" only in the indirect sense of providing the basic legal framework with which substantive environmental standards-like all legislative standards-must ultimately comport. When Congress, for example, enacts legislation to control pollution or to protect endangered species, the constitutional issue theoretically presented is whether such legislation exceeds limits placed by the Framers on federal legislative authority. These limits may result either from the lack of federal power to deal with the problem or from conflict between a federal regulatory scheme and the constitutional rights of affected individuals. A state legislature, in contrast, is free to wield the state's police power unrestricted by the limitations that theoretically face a government of limited powers; but the state in turn must observe not only the constitutional rights of affected individuals, but also the boundaries inherent in a constitutional scheme that gives supremacy to federal laws and programs over conflicting state efforts. In both of these cases, constitutional law sets potential bounds on the range of permissible legislative responses to environmental problems.


Originally published as Soper, E. Philip. "The Constitutional Framework of Environmental Law." In Federal Environmental Law, edited by Erica L. Dolgin and Thomas G.P. Guilbert, 20-125. St. Paul, MN: West, 1974. Use is with the permission of Thomson Reuters