Right Environmentalism : Repurposing Conservative Constitutionalism

The new normal of environmental law will likely feature reduced enforcement of existing federal environmental statutes, elimination of federal regulations deemed anti-business, slashed funding for climate change response programs, and state preemption of local sustainability initiatives. Attorneys representing environmental interests will be “bringing a knife to a gunfight” should they continue to attack such stalwart principles of conservative jurisprudence as federalism, textualism, and originalism, or to seek the reversal of strong precedents that narrow standing, limit the reach of the Commerce and Necessary and Proper Clauses, and expand the scope of the Takings Clause to include allegedly confiscatory environmental and land use regulations. What is needed is a litigation strategy that goes beyond accommodating, adjusting, or massaging conservative jurisprudence. Counsel should advance arguments that will most effectively result in victories for the side identified with environmental protection and sustainability. This article provides the framework for the adoption and advancement of conservative constitutional principles (a set of doctrines that I call “right environmentalism”), presents six illustrative scenarios, and discusses two examples from the early twentieth century of counsel successfully appealing to conservatives on the Court (Muller v. Oregon and Buchanan v. Warley), examples that can serve as models for today’s very serious challenges