“Sebelius reshapes jurisprudence concerning the Commerce, Necessary and Proper, and Tax and Spending Clauses of the U.S. Constitution in fresh and uncertain ways. It has the potential to reverberate in other spheres involving federal public health and welfare, including environmental laws. In this regard, it is the most important environmental law decision from the Court’s 2011-12 session,” said Professor James R. May
during remarks that came as part of the Environmental Law Institute’s "What Does the Health Care Ruling Mean for Environmental Law?" forum held on Tuesday, July 31, 2012.
Professor May explored potential ways in which the Court’s decision could impact environmental law during his presentation. He observed that the Court’s conclusion that the Commerce Clause cannot be used as justification to compel people to purchase health insurance may suggest a similar limit on the ability of Congress to compel compliance in certain pollution control or abatement markets. He also stated that the argument concluding that the individual mandate is constitutional under the Tax Clause seems to hold little weight in federal environmental law currently, and that “Congress seldom makes noncompliance with federal environmental laws subject to penalties collectable by the IRS under the Tax Code.”
He also touched on the Court stating that Congress cannot compel states to adopt the Partnership for Prescription Assistance under threat of losing all Medicaid funding. He observed that this suggests further limits on the extent to which Congress could withhold funding from states that do not implement federal environmental laws, such as state implementation plans under the federal Clean Air Act.
“In sum, Sebelius could have important reverberations affecting environmental laws. The nation’s environmental and health care laws share some of the same features. Both require individuals to participate in certain markets. With health care, the individual mandate requires the purchase of insurance under threat of penalty. Many federal environmental laws require individuals to participate in certain markets, and purchase pollution control equipment, emission credits, or wetlands mitigation, for example,” Professor May concluded.