Commerce in the Commons

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  • Article: Hudson, Blake, Commerce in the Commons: A New Conception of Environmental and Natural Resource Regulation Under the Commerce Clause (August 1, 2010). Harvard Environmental Law Review, Vol. 35, No. 2, 2011; Stetson University College of Law Research Paper No. 2010-07.

Available at SSRN: http://ssrn.com/abstract=1663838


Abstract

"Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes the Supreme Court’s major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a surprisingly consistent theme emerges: the Court has consistently upheld federal authority to regulate zero-sum, finite resources over which rivalry of use takes place – the key characteristics of a commons. The Court’s Commerce Clause jurisprudence can be interpreted as treating these “privatized commons resources” as necessarily meeting the third test for determining the validity of federal legislation under the Commerce Clause – the “substantial effects” test. Recognizing the use of commons analysis to meet the substantial effects test is an important step, as it provides security about the continued protection of valuable natural resources, a clearer statement of the Court’s approach in environmental cases and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also answers persistent questions arising in Commerce Clause cases, including when the aggregation principle may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and the proper scope of federal Commerce Clause authority given constitutional federalism requirements."