Healthcare, Environmental Law, and the Supreme Court: An Analysis Under the Commerce, Necessary and Proper, and Tax and Spending Clauses
The nation’s healthcare and environmental laws share some common features. Both require individuals to participate in certain markets, are steeped in the principles of cooperative federalism, and attach federal dollars to compliance. Thus, the Supreme Court’s decision in National Federation of Independent Business v. Sebelius has the potential to influence the nation’s federal environmental laws in new ways. First, the logical, if attenuated, extension of the Court’s conclusion that the Commerce Clause does not permit Congress to compel individuals to purchase health insurance suggests some limits on the extent to which Congress may compel participation in certain pollution-control and abatement markets. Second, the Court’s decision that Congress cannot “compel” states to adopt the Medicaid extension under the threat of losing all Medicaid funding suggests further limits on the extent to which Congress may withhold funding from states that do not or cannot implement federal environmental laws. Lastly, the basis for upholding the individual mandate as a tax actually has the potential to provide additional constitutional justification for federal environmental laws should the Court ever reconsider their Commerce Clause foundations. Nonetheless, the Sebelius opinion is unlikely to have a significant impact on federal environmental laws because they can be effectively distinguished from the Court’s healthcare ruling.
Recent decisions give limited guidance on state RCRA regulation of hazardous waste. [RCRA (Resource Conservation and Recovery Act of 1976)]
In practice, since the enactment of the Resource Conservation and Recovery Act of 1976 (RCRA), state hazardous waste management programs have only been allowed to act as surrogates for the federal program. Congress recognized the need to utilize state police powers in tandem with federal standards to have the ability to enforce the provisions of hazardous waste management programs and limit the damages caused by indiscriminate waste handling and disposal. After more than fifteen years, it is apparent that federal standards and law alone have not had the capacity to smooth out specific regional problems. This discrepancy has begun receiving recognition in various courts. The power for states to implement stronger region-specific hazardous waste management programs already existed in the RCRA [open quotes]savings clause[close quotes] created by the HSWA act of 1984. This article addresses three cases since 1992 which may be indicative of a trend to guide states into creating regulations that address their regional interests. These cases are: Chemical Waste Management, Inc. v. Hunt, Old Bridge Chemicals,Inc. v. New Jersey Department of Environmental Protection, and United States v. Colorado. The federal cases discussed in this note have recognized the continuing concern of states in addressing local hazardous wastemore » management interests and the inability of generalized federal EPA standards to correct that concern. By emphasizing RCRA's [open quotes]savings clause[close quotes] and finding state RCRA and EPA CERCLA programs as applied to federal facilities additive rather than conflicting, the federal courts appear to be guiding the maturing RCRA program toward a realistic [open quotes]cooperative federalism.[close quotes]« less
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.