The Federalist Society’s 2023 National Lawyers Convention featured a panel organized by the Environmental Law and Property Rights Practice Group entitled “Defend the Constitution, Save the Planet: The Role of Public Interest Groups in Shaping Environmental Law.” The panelists and the moderator were outstanding, and I highly recommend watching the whole thing.

There is a point that arose in the discussion that I would like to emphasize here, since it needs to be part of the common understanding of liberals and conservatives alike as we approach questions of federal agency jurisdiction, including in the environmental sphere.

When Congress enacts a law that prescribes a limit to the jurisdiction of a federal agency, the limit to jurisdiction is intended to protect the people and properties outside that limit from the regulatory and enforcement activity of the federal agency.

When a federal agency exercises power outside the limits of its statutory jurisdiction, it is behaving tyrannously, pure and simple. I don’t mean to suggest that the federal agencies concerned are acting in bad faith or from any improper motive. I was personally responsible for administering the Army Corps of Engineers’ wetlands regulatory activities for several years, during which time I think it is fair to say we extended our regulatory reach beyond what has recently been held to be its statutory limits. We extended our regulatory activities to the farthest extent of our then-current understanding of the statutory limits. Failure to do so would have constituted dereliction of duty, as much to be decried as tyranny. 

Simply put, a regulatory agency must have clearly defined jurisdictional limits to do its job. Sometimes these limits can only be established by litigation. In my view, the lawyers on both sides of these environmental questions are litigating in the public interest, even if one side represents a private party while the other side represents the government. Private parties vindicate their own rights, but also the rights of all the other individuals who they argue should be beyond the reach of the agency seeking to regulate.

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