Is the changing interpretation of the commerce clause the only threat to the environment?
Far from it. In recent years the Rehnquist Court has breathed life back into the notion of states’ immunity from suits for money—an immunity rooted in the Eleventh Amendment. This line of cases is exceedingly controversial, and rightly so; but its practical effects have been limited in application. In a disturbing and widely overlooked 2001 opinion, however, the Fourth Circuit used an Eleventh Amendment argument to block an environmental suit that sought to force West Virginia officials to stop letting mining companies blow the tops off mountains to get at the coal inside. A reinvigorated Eleventh Amendment could prove a disaster for federal environmental laws, which because of their unique structure could be unusually vulnerable to this doctrine. Okay, but even if the courts limit federal environmental protection, the states could step in and fill the gap, right? Not so easily. First of all, many environmental problems are inherently interstate, and cannot reasonably be managed by any
