Prof. Sheridan
Conlaw, SFLS
December, 2003
Essay Question #2
ANTI-POLLUTION LAWS
The smoke stacks of coal-burning power plants located in several states in the Midwest emit ozone, mercury, particulate matter, and other harmful chemicals which enter the atmosphere drift northeastward, pollute the rain, hence the streams, and kill fish. These power plants provide electric power to homes, stores, factories, cities and states through a power grid of wires criss-crossing the entire country.
Although the federal Clean Air Act prescribes the acceptable limits of such emissions, the federal government under the current administration has granted waivers from these limits, allowing the harmful activity to continue.
Scientific and medical researchers have reliably attributed a number of harmful effects to this specific power-plant chemical pollution of the atmosphere, including:
• One in four children in high population density areas of New York City have been found to suffer from asthma, a life-threatening lung ailment.
• Many of the lakes in several Northeastern states have become sterile of fish as the result of the “acid rain”produced when ozone and other chemicals interact with moisture in the air. Acid rain falling in the watersheds pollutes the streams that feed the lakes, killing vital elements in the food chain and ultimately the fish. Mercury traced to these power plants is found in fish eaten by humans. Mercury in humans is very harmful, especially to fetuses and children.
• Mountain lakes in the Appalachian Mountain chain extending from Georgia northeastwards to the Adirondack Mountain chain in New York State and into Canada have become sterile of fish as the result of acid rain coming from power plants in the Midwest.
• These sterile lakes used to attract thousands of visitors from home and abroad who supported the local economy by spending substantial sums fishing, camping, and enjoying nature. Hard-working parents used these occasions to relax and their families used the visits to foster their relationships by interacting enjoyably together in a natural setting. Tourism centering on enjoyment of the lakes has dropped off significantly since they became sterile, hurting the local economy as well as the ecology.
The legislature of the State of New York, taking note of the above, has enacted Anti-Pollution legislation making it a crime to emit dangerous pollution into the atmosphere which enters the state and causes acid rain, harm to wildlife, or harmful health-effects to children or adults.
New York State’s aggressive attorney-general, who aspires to higher political office, has announced publicly that he intends to accuse criminally by indictment not only several named corporations operating polluting power plants in the Midwest but their officers and directors as well.
The New York Anti-Pollution Act also provides that any convicted polluter may no longer contribute or distribute power into New York State without paying a substantial “pollution cleanup fee” based on the quantity of power distributed by any plant into the state. These fees will be put into a fund and used to provide health care and to clean up and re-stock the lakes with fish.
Power plants in New York, both state owned and privately owned, burn fuel oil, not coal, in plants that protect against any harmful emissions escaping. If out-of-state coal-burning plants must pay New York State’s pollution cleanup fee the result will be to make their electricity much more costly than locally produced power. Local New York power producers have enthusiastically supported this legislation.
Several other Northeastern states, following New York’s lead, have enacted copycat legislation to the same effect, posing a similar threat.
Seeking to block the threatened indictments on constitutional grounds, the Association of Midwestern Powerplants (“AMP”) has brought suit in federal court on behalf of its member power plant corporations asking the court to enjoin enforcement of the New York Anti-Pollution Statute, claiming that its enactment by New York State has violated the Commerce Clause. The case has now reached the U.S. Supreme Court which is considering the matter on the merits.
Assume that the case was properly pled and brought, and that standing to sue has already been found and need not be discussed by you.
Question: State whether the Court should declare unconstitutional
(a) the penal aspect and
(b) the “pollution cleanup fee” provision of the New York State Anti-Pollution Statute.
State your reasoning and arguments based on applicable constitutional law.
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ANSWERS SHOULD RECOGNIZE, DISCUSS, AND ELABORATE ON THE FOLLOWING THEMES, RELATING TO CASES, IF NOT BY NAME, THEN BY FACTS, SUCH THAT A PRINCIPLE OF CONSTITUTIONAL LAW IS DESCRIBED AS APPLYING. ARGUE WHICH WAY THE CASE SHOULD BE DECIDED BASED ON THOSE STATED PRINCIPLES OF CONSTITUTIONAL LAW:
MERITS: CONSTITUTIONAL OR UN-CONSTITUTIONAL?
This question pits the reserved “police power” of the states, whereby states may enact legislation to protect the health, safety, morals and welfare of its residents, under the Tenth Amendment against the Commerce Power delegated to Congress and the federal government by the states in Art. I, Sec. 8, Cl. 3.
Clearly the states have power to legislate under the reserved police power.
However, this legislation has an impact on interstate commerce since the polluting conduct originates outside of the state but crosses state lines atmospherically to enter and harm lakes, children, and the economy. The power generating and polluting activity are interstate in nature and national in extent, over the national power grid and across state lines.
Congress has enacted a Clean Air Act which may pre-empt the field under the Supremacy Clause, depending on whether Congress has fully occupied the field or expressed its intent to pre-empt.
However, by granting waivers, the Administration has undercut the protection of the federal statute and forced the states to protect themselves.
The question is whether the states are constitutionally empowered to protect themselves, i.e. their residents, considering that if each state is allowed to so protect itself the nation may resemble a patchwork quilt of conflicting legislation. In the case of highways this has been allowed, but as to railroads it has not.
The Court should recognize the power of the states to protect themselves from legitimate harm to residents and the ecology. The court will have difficulty determining whether the potential for checkerboarding is sufficient to constitute an undue burden on interstate commerce. If the Court were to permit the states to so legislate, it would force Congress and the Administration further to act such as by repealing the waivers or enacting further requirements to limit or prevent pollution.
The state legislation appears to be a legitimate response to an actual harmful situation. There are facts suggesting that the state is favoring its own by imposing a pollution cleanup fee that favors local producers over out-of-staters economically. This provision may fall as a per se favoritism violation acting as an undue burden on interstate commerce. Or, it may be reasonably related to the cost of cleanup caused by the harmful activity.
Perhaps a split court, with the conservatives holding in favor of preemption and finding unlawful discrimination against outsiders, while the liberals opt for upholding both legs of the legislation as reasonably related to legitimate state interests and the cost of cleanup.