Harnessing the Treaty Power in Support of Environmental Regulation of Activities that Don't "Substantially Affect Interstate Commerce": Recognizing the Realities of the New Federalism
By Katrina L. Fischer
INTRODUCTION
The Supreme Court issued an abrupt and miserly delineation of the scope of Congress' Article I, Section 8 power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" in Lopez v. United States and United States v. Morrison. The extension of the Court's holdings in these decisions has not only led to the invalidation of a number of statutes that two decades ago would have rested safely within Article I, Section 8, but has fueled significant scholarly speculation about, as well as lower court challenges to, the continued constitutionality of a host of environmental statutes. A number of appellate courts have upheld constitutional challenges to statutes such as the Endangered Species Act (ESA), the Comprehensive Environmental Resource Conservation Liability Act, the Bald Eagle Protection Act, and the Clean Water Act (CWA), and strong arguments have been constructed tracing the connection between various modes of environmental regulation and interstate commerce.
However, the Supreme Court, post-Lopez, has not yet directly addressed whether an existing environmental statute is a valid exercise of Congress' Commerce Clause authority. Recently, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court discussed, but declined to directly hold upon, whether extending the term “navigable waters” in the CWA to cover isolated, intrastate waters would be a valid assertion of Congress' power under the Commerce Clause, warning:
These arguments [that the Corps can regulate isolated, intrastate waters] raise significant constitutional questions. For example, we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce. This is not clear, for although the Corps has claimed jurisdiction over petitioner's land because it contains water areas used as habitat by migratory birds, respondents now, post litem motam, focus upon the fact that the regulated activity is petitioner's municipal landfill, which is ‘plainly of a commercial nature.’ . . . These are significant constitutional questions raised by respondents' application of their regulations . . . .
These statements, while technically dicta, sound an ominous tone, especially when considered along with the fact that the Supreme Court's statutory construction of the term “navigable waters” in the CWA was expressly guided by an understanding that the bounds of the CWA were initially indexed to interstate commercial endeavors and the transport of goods.
In addition, not all of the lower court decisions applying a Lopez analysis to environmental statutes have held these statutes to be constitutional. In United States v. Wilson, the Fourth Circuit, touching on the constitutional question that the Supreme Court avoided in SWANCC, held that “33 C.F.R. § 328.3(a)(3) (1993) (defining waters of the United States to include those waters whose degradation ‘could affect’ interstate commerce) is unauthorized by the Clean Water Act as limited by the Commerce Clause and therefore is invalid.” Because “Congress has used the commerce power as the basis for regulating air and water pollution, hazardous waste disposal, and a host of other environmental problems,” this state of uncertainty about the bounds of the commerce power is troubling.
Although environmental statutes and regulations rarely address commerce directly and environmental regulation is largely a product of statutory construction, there is no real concern that the entire environmental statutory structure is fissured with constitutional infirmity. Lopez and Morrison have made clear that the causal chain between a regulated activity and interstate commerce cannot be so attenuated as to destroy “a distinction between what is truly national and what is truly local;” yet, there does not appear to be any doubt, as yet expressed, that the causal link between activities such as the regulation of surface waters physically connected to navigable waters and the registration of pesticides and interstate commerce is sufficiently close to satisfy the Lopez-Morrison standard.
There are, however, two potential impacts of the Lopez-Morrison analysis on the capacity of government to undertake environmental governance. First, existing regulatory regimes may be threatened by a general recognition that specific portions of certain environmental statutes, such as Section 9 of the ESA and the scope of “navigable waters” under the CWA, are vulnerable to invalidation. Second, and arguably more serious, the Lopez-Morrison analysis may stunt the future development of environmental governance by fostering a narrowly focused parochialism in future environmental statutes and regulatory interpretations. For example, although it is now widely recognized that the protection of habitat on private lands may be the single most important variable in protecting endangered species, it is hard to imagine that the present day interpretation of the scope of Section 9 of the ESA would have been arrived at under the shadow of the Lopez-Morrison holdings. Recall that the language of the ESA makes it illegal for anyone, including private individuals on private land, to “take” a species, that the U.S. Fish and Wildlife Service interpreted “take” to include “harm,” and that subsequent court cases upheld the proposition that “harm” could include habitat modification.
Many environmental scholars anticipate that we are entering an age (sometimes called the “next generation” of environmental regulation) in which new scientific understandings and technological capacity will render possible regulatory approaches that are increasingly indexed to individual, often intrastate, behavior. Ecological connections, such as the impact of the emissions from one individual car's tailpipe on air quality, will become clearer. The menu of regulatory options should not be artificially constrained by requiring that these ecological connections be translated into interstate commerce connections for purposes of constitutional justification.
It should be noted that recognition of the poor fit between effective environmental governance and a constitutional structure premised on federal regulation of interstate trade presages the recent constriction of the Commerce Clause power. The inherent tension that exists between promoting trade and allowing states to regulate the environment has led many scholars to conclude that the constitutional structure frustrates environmental regulation. This tension is created by a constitutional structure based in a federal power to protect unfettered trade between the states. In the case that best demonstrates this tension, Philadelphia v. New Jersey, the Supreme Court held that New Jersey could not constitutionally prohibit the importation of waste from other states for disposal in New Jersey because to do so would impermissibly constrain interstate trade. On a more general note, it is widely recognized that when attempts are made to view environmental goods through a commercial lens by assigning to them a price, resultant distortions tend to systematically undervalue environmental goods.
Thus, articulation of an alternative constitutional ground in which to base the federal power to regulate the environment may be necessary to not only preserve portions of existing environmental statutes but also to ensure that future approaches to environmental governance are not unnecessarily constrained. The expressly non-commercial nature of most environmental regulation makes the need for an alternative constitutional ground a distinct concern in the environmental realm. However, it is not just an “environmental” issue. In the wake of Lopez and Morrison, many outside of the environmental field have recognized the potential utility of an alternative constitutional grounding for the exercise of federal power. And for many, attention has focused on the treaty power.
Article II, Section 2, of the Constitution provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties.” Article I, Section 8 provides that Congress may make “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” Together, and as interpreted in the seminal case Missouri v. Holland, these powers give rise to the treaty power and ostensibly allow Congress, in conjunction with the President, to enact statutes that give effect to treaties.
These powers are generally recognized to allow Congress to enact a statute that would otherwise exceed the scope of Congress' enumerated powers:
By Article II, Section 2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.
The treaty power may not be used to cede the territory of any state or violate specific constitutional provisions, such as those contained in the Bill of Rights, but its scope is otherwise without clear limit. As one scholar has observed, “[a]lthough the treaty power is understood as being subject to the individual rights protections of the Constitution, and perhaps also to the separation of powers restrictions, treaties and executive agreements are not thought to be limited either by subject matter or by the Tenth Amendment's reservation of power to the states.” Historical efforts to rein in the scope of the treaty power have been expressly rejected. The failure of Senator Bricker's proposed constitutional amendment to narrow the treaty power to existing spheres of legislative power may be significant for defining in the negative the potential scope of the treaty power.
Given the seemingly boundless scope of the treaty power, it is no surprise that there are attempts from many quarters to ground assertions of federal power rendered questionable and/or infirm under Lopez, Morrison and other federalism decisions in the treaty power instead. The treaty power has been invoked as a potential source for “overcom[ing] federalism restraints on domestic lawmaking” in a variety of contexts, including those with regard to human rights standards, criminal law and punishment, commerce and trade, and the commandeering of state governments. More specifically, it has been argued that the treaty power provides constitutional authority for Congress to enact statutes such as the Religious Freedom Restoration Act and the Violence Against Women Act where the Fourteenth Amendment or the Commerce Clause do not. It has even been suggested that human rights treaties may compel the United States to maintain affirmative action programs.
The treaty power has likewise been postulated to provide support for various provisions of environmental statutes, the constitutionality of which has come into doubt after Lopez and Morrison. Although the Supreme Court did not reach the issue, commentators on the SWANCC decision have suggested that the treaty power provides a ground independent of the Commerce Clause for upholding the constitutionality of the CWA's reach to include isolated, intrastate water bodies. Gavin R. Villareal and Omar N. White have evaluated (in separate articles) the possibility of employing the treaty power to support the ESA.
However, none of the discussions about using the treaty power to support environmental legislation have confronted the full import of the Supreme Court's recent federalism decisions. The increasingly narrow conception of the scope of Congress' enumerated power to regulate interstate commerce in Lopez and Morrison is but one aspect of a revived notion of judicial competence (indeed duty) to enforce the boundary between spheres of state and federal authority.
In addition to its Commerce Clause decisions, the Supreme Court has recently asserted limits on “cooperative federalism” through the development of a robust anti-commandeering jurisprudence, articulated increasingly strong Eleventh Amendment protections for the states, narrowed the scope of Congress' powers under Section 5 of the Fourteenth Amendment, and imposed clear statement rules of statutory construction where federalism boundaries are approached. Thus, the Lopez and Morrison decisions exist not in a vacuum, but as part of a broader theory of federalism adopted by the Supreme Court that emphasizes both the benefits of strong state governments (including accountability, limited government, participation benefits, experimentation, diversity, and providing a check on the federal government's power) and the need for judicial enforcement of federalism boundaries to ensure that the benefits thereof are achieved.
In light of this background, it seems short-sighted to posit that a treaty power as broad-sweeping as that described above can be unproblematically substituted for the commerce power. Indeed, as new focus has turned to the treaty power as an alternate source of constitutional authority, an entire literature has developed discussing the historical scope of the treaty power and how it will and should be defined given the Supreme Court's new federalism jurisprudence. As new efforts to situate congressional power in the Treaty Clause proceed, the question appears not to be whether, upon closer reexamination, the treaty power will be reconceptualized and cabined through limiting principles, but how the treaty power will be recast in a manner consistent with the Supreme Court's revitalized approach to federalism.
Herein lies a challenge and an opportunity. While attempts to advance a strong and relatively unlimited theory of the treaty power in order to rehabilitate invalidated or threatened portions of environmental statutes might on its face seems to be in the best interest of advancing the constitutional bases for environmental regulation (proceeding under the assumption that the broader the cast of the treaty power, the more activities that may be regulated pursuant to it), ultimately such a strategy is likely to be founded upon the Court's revived approach to federalism. The broader the scope of the treaty power that is argued for, the more likely that the Court will find that such a conception of the treaty power violates the principles of federalism and the more likely that the Court will search for and impose limiting principles on the treaty power. These Court-adduced limiting principles may or may not be hospitable to the use of the treaty power for environmental regulation.
Alternatively, a more nuanced litigation strategy might be to anticipate that an unbounded treaty power is irreconcilable with the Court's theory of federalism, and offer instead a framework for application of the treaty power that is limited enough to assuage federalism concerns, but still tailored to accommodate future application in the environmental realm. In essence, by arguing for a more limited conception of the treaty power, it may be possible to gain judicial acceptance of a view of the power that, while limited, still has the potential to support many forms of domestic environmental regulation.
This Article proposes a framework for applying the treaty power that would accomplish these goals. This framework would be applied where the President has signed, and Congress has ratified, a treaty and Congress has enacted domestic legislation in some way satisfying the goals or requirements of the treaty. Under this framework, the inquiry into whether the treaty power could appropriately be used by Congress in excess of its Article I, Commerce Clause powers would be indexed to the strength of (1) the contract-like nexus between the necessarily reciprocal requirements and the goals of the treaty and the specific statutory provisions enacted, and (2) the visibly apparent connection between the treaty and the legislation. Prong one of this framework, while greatly narrowing the extent to which the treaty power could be used to exceed Congress' Commerce Clause authority to effect domestic regulation, would still leave room within the treaty power for the achievement of environmental gains because of the unique interconnectedness of many local and international environmental challenges. Prong two of this framework, by respecting prior expectations about the reach of environmental treaties and statues, avoids creating new reluctance to entering into environmental treaties.
Part II of this Article discusses the reach of the treaty power and reviews various conceptions of how the Supreme Court's recent federalism decisions have limited this power. Part III discusses how a framework for application of the treaty power can be designed that satisfies federalism concerns while still reserving room for use of the treaty power to achieve environmental benefits and supports this proposed framework by looking to the European experience in balancing international treaties and domestic regulation.Part IV analyzes portions of the ESA and the CWA that may be vulnerable to Lopez-Morrison challenge and demonstrates how attempts to rehabilitate provisions of these acts would fare under the proposed treaty power framework.
The Supreme Court issued an abrupt and miserly delineation of the scope of Congress' Article I, Section 8 power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" in Lopez v. United States and United States v. Morrison. The extension of the Court's holdings in these decisions has not only led to the invalidation of a number of statutes that two decades ago would have rested safely within Article I, Section 8, but has fueled significant scholarly speculation about, as well as lower court challenges to, the continued constitutionality of a host of environmental statutes. A number of appellate courts have upheld constitutional challenges to statutes such as the Endangered Species Act (ESA), the Comprehensive Environmental Resource Conservation Liability Act, the Bald Eagle Protection Act, and the Clean Water Act (CWA), and strong arguments have been constructed tracing the connection between various modes of environmental regulation and interstate commerce.
However, the Supreme Court, post-Lopez, has not yet directly addressed whether an existing environmental statute is a valid exercise of Congress' Commerce Clause authority. Recently, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court discussed, but declined to directly hold upon, whether extending the term “navigable waters” in the CWA to cover isolated, intrastate waters would be a valid assertion of Congress' power under the Commerce Clause, warning:
These arguments [that the Corps can regulate isolated, intrastate waters] raise significant constitutional questions. For example, we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce. This is not clear, for although the Corps has claimed jurisdiction over petitioner's land because it contains water areas used as habitat by migratory birds, respondents now, post litem motam, focus upon the fact that the regulated activity is petitioner's municipal landfill, which is ‘plainly of a commercial nature.’ . . . These are significant constitutional questions raised by respondents' application of their regulations . . . .
These statements, while technically dicta, sound an ominous tone, especially when considered along with the fact that the Supreme Court's statutory construction of the term “navigable waters” in the CWA was expressly guided by an understanding that the bounds of the CWA were initially indexed to interstate commercial endeavors and the transport of goods.
In addition, not all of the lower court decisions applying a Lopez analysis to environmental statutes have held these statutes to be constitutional. In United States v. Wilson, the Fourth Circuit, touching on the constitutional question that the Supreme Court avoided in SWANCC, held that “33 C.F.R. § 328.3(a)(3) (1993) (defining waters of the United States to include those waters whose degradation ‘could affect’ interstate commerce) is unauthorized by the Clean Water Act as limited by the Commerce Clause and therefore is invalid.” Because “Congress has used the commerce power as the basis for regulating air and water pollution, hazardous waste disposal, and a host of other environmental problems,” this state of uncertainty about the bounds of the commerce power is troubling.
Although environmental statutes and regulations rarely address commerce directly and environmental regulation is largely a product of statutory construction, there is no real concern that the entire environmental statutory structure is fissured with constitutional infirmity. Lopez and Morrison have made clear that the causal chain between a regulated activity and interstate commerce cannot be so attenuated as to destroy “a distinction between what is truly national and what is truly local;” yet, there does not appear to be any doubt, as yet expressed, that the causal link between activities such as the regulation of surface waters physically connected to navigable waters and the registration of pesticides and interstate commerce is sufficiently close to satisfy the Lopez-Morrison standard.
There are, however, two potential impacts of the Lopez-Morrison analysis on the capacity of government to undertake environmental governance. First, existing regulatory regimes may be threatened by a general recognition that specific portions of certain environmental statutes, such as Section 9 of the ESA and the scope of “navigable waters” under the CWA, are vulnerable to invalidation. Second, and arguably more serious, the Lopez-Morrison analysis may stunt the future development of environmental governance by fostering a narrowly focused parochialism in future environmental statutes and regulatory interpretations. For example, although it is now widely recognized that the protection of habitat on private lands may be the single most important variable in protecting endangered species, it is hard to imagine that the present day interpretation of the scope of Section 9 of the ESA would have been arrived at under the shadow of the Lopez-Morrison holdings. Recall that the language of the ESA makes it illegal for anyone, including private individuals on private land, to “take” a species, that the U.S. Fish and Wildlife Service interpreted “take” to include “harm,” and that subsequent court cases upheld the proposition that “harm” could include habitat modification.
Many environmental scholars anticipate that we are entering an age (sometimes called the “next generation” of environmental regulation) in which new scientific understandings and technological capacity will render possible regulatory approaches that are increasingly indexed to individual, often intrastate, behavior. Ecological connections, such as the impact of the emissions from one individual car's tailpipe on air quality, will become clearer. The menu of regulatory options should not be artificially constrained by requiring that these ecological connections be translated into interstate commerce connections for purposes of constitutional justification.
It should be noted that recognition of the poor fit between effective environmental governance and a constitutional structure premised on federal regulation of interstate trade presages the recent constriction of the Commerce Clause power. The inherent tension that exists between promoting trade and allowing states to regulate the environment has led many scholars to conclude that the constitutional structure frustrates environmental regulation. This tension is created by a constitutional structure based in a federal power to protect unfettered trade between the states. In the case that best demonstrates this tension, Philadelphia v. New Jersey, the Supreme Court held that New Jersey could not constitutionally prohibit the importation of waste from other states for disposal in New Jersey because to do so would impermissibly constrain interstate trade. On a more general note, it is widely recognized that when attempts are made to view environmental goods through a commercial lens by assigning to them a price, resultant distortions tend to systematically undervalue environmental goods.
Thus, articulation of an alternative constitutional ground in which to base the federal power to regulate the environment may be necessary to not only preserve portions of existing environmental statutes but also to ensure that future approaches to environmental governance are not unnecessarily constrained. The expressly non-commercial nature of most environmental regulation makes the need for an alternative constitutional ground a distinct concern in the environmental realm. However, it is not just an “environmental” issue. In the wake of Lopez and Morrison, many outside of the environmental field have recognized the potential utility of an alternative constitutional grounding for the exercise of federal power. And for many, attention has focused on the treaty power.
Article II, Section 2, of the Constitution provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties.” Article I, Section 8 provides that Congress may make “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” Together, and as interpreted in the seminal case Missouri v. Holland, these powers give rise to the treaty power and ostensibly allow Congress, in conjunction with the President, to enact statutes that give effect to treaties.
These powers are generally recognized to allow Congress to enact a statute that would otherwise exceed the scope of Congress' enumerated powers:
By Article II, Section 2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.
The treaty power may not be used to cede the territory of any state or violate specific constitutional provisions, such as those contained in the Bill of Rights, but its scope is otherwise without clear limit. As one scholar has observed, “[a]lthough the treaty power is understood as being subject to the individual rights protections of the Constitution, and perhaps also to the separation of powers restrictions, treaties and executive agreements are not thought to be limited either by subject matter or by the Tenth Amendment's reservation of power to the states.” Historical efforts to rein in the scope of the treaty power have been expressly rejected. The failure of Senator Bricker's proposed constitutional amendment to narrow the treaty power to existing spheres of legislative power may be significant for defining in the negative the potential scope of the treaty power.
Given the seemingly boundless scope of the treaty power, it is no surprise that there are attempts from many quarters to ground assertions of federal power rendered questionable and/or infirm under Lopez, Morrison and other federalism decisions in the treaty power instead. The treaty power has been invoked as a potential source for “overcom[ing] federalism restraints on domestic lawmaking” in a variety of contexts, including those with regard to human rights standards, criminal law and punishment, commerce and trade, and the commandeering of state governments. More specifically, it has been argued that the treaty power provides constitutional authority for Congress to enact statutes such as the Religious Freedom Restoration Act and the Violence Against Women Act where the Fourteenth Amendment or the Commerce Clause do not. It has even been suggested that human rights treaties may compel the United States to maintain affirmative action programs.
The treaty power has likewise been postulated to provide support for various provisions of environmental statutes, the constitutionality of which has come into doubt after Lopez and Morrison. Although the Supreme Court did not reach the issue, commentators on the SWANCC decision have suggested that the treaty power provides a ground independent of the Commerce Clause for upholding the constitutionality of the CWA's reach to include isolated, intrastate water bodies. Gavin R. Villareal and Omar N. White have evaluated (in separate articles) the possibility of employing the treaty power to support the ESA.
However, none of the discussions about using the treaty power to support environmental legislation have confronted the full import of the Supreme Court's recent federalism decisions. The increasingly narrow conception of the scope of Congress' enumerated power to regulate interstate commerce in Lopez and Morrison is but one aspect of a revived notion of judicial competence (indeed duty) to enforce the boundary between spheres of state and federal authority.
In addition to its Commerce Clause decisions, the Supreme Court has recently asserted limits on “cooperative federalism” through the development of a robust anti-commandeering jurisprudence, articulated increasingly strong Eleventh Amendment protections for the states, narrowed the scope of Congress' powers under Section 5 of the Fourteenth Amendment, and imposed clear statement rules of statutory construction where federalism boundaries are approached. Thus, the Lopez and Morrison decisions exist not in a vacuum, but as part of a broader theory of federalism adopted by the Supreme Court that emphasizes both the benefits of strong state governments (including accountability, limited government, participation benefits, experimentation, diversity, and providing a check on the federal government's power) and the need for judicial enforcement of federalism boundaries to ensure that the benefits thereof are achieved.
In light of this background, it seems short-sighted to posit that a treaty power as broad-sweeping as that described above can be unproblematically substituted for the commerce power. Indeed, as new focus has turned to the treaty power as an alternate source of constitutional authority, an entire literature has developed discussing the historical scope of the treaty power and how it will and should be defined given the Supreme Court's new federalism jurisprudence. As new efforts to situate congressional power in the Treaty Clause proceed, the question appears not to be whether, upon closer reexamination, the treaty power will be reconceptualized and cabined through limiting principles, but how the treaty power will be recast in a manner consistent with the Supreme Court's revitalized approach to federalism.
Herein lies a challenge and an opportunity. While attempts to advance a strong and relatively unlimited theory of the treaty power in order to rehabilitate invalidated or threatened portions of environmental statutes might on its face seems to be in the best interest of advancing the constitutional bases for environmental regulation (proceeding under the assumption that the broader the cast of the treaty power, the more activities that may be regulated pursuant to it), ultimately such a strategy is likely to be founded upon the Court's revived approach to federalism. The broader the scope of the treaty power that is argued for, the more likely that the Court will find that such a conception of the treaty power violates the principles of federalism and the more likely that the Court will search for and impose limiting principles on the treaty power. These Court-adduced limiting principles may or may not be hospitable to the use of the treaty power for environmental regulation.
Alternatively, a more nuanced litigation strategy might be to anticipate that an unbounded treaty power is irreconcilable with the Court's theory of federalism, and offer instead a framework for application of the treaty power that is limited enough to assuage federalism concerns, but still tailored to accommodate future application in the environmental realm. In essence, by arguing for a more limited conception of the treaty power, it may be possible to gain judicial acceptance of a view of the power that, while limited, still has the potential to support many forms of domestic environmental regulation.
This Article proposes a framework for applying the treaty power that would accomplish these goals. This framework would be applied where the President has signed, and Congress has ratified, a treaty and Congress has enacted domestic legislation in some way satisfying the goals or requirements of the treaty. Under this framework, the inquiry into whether the treaty power could appropriately be used by Congress in excess of its Article I, Commerce Clause powers would be indexed to the strength of (1) the contract-like nexus between the necessarily reciprocal requirements and the goals of the treaty and the specific statutory provisions enacted, and (2) the visibly apparent connection between the treaty and the legislation. Prong one of this framework, while greatly narrowing the extent to which the treaty power could be used to exceed Congress' Commerce Clause authority to effect domestic regulation, would still leave room within the treaty power for the achievement of environmental gains because of the unique interconnectedness of many local and international environmental challenges. Prong two of this framework, by respecting prior expectations about the reach of environmental treaties and statues, avoids creating new reluctance to entering into environmental treaties.
Part II of this Article discusses the reach of the treaty power and reviews various conceptions of how the Supreme Court's recent federalism decisions have limited this power. Part III discusses how a framework for application of the treaty power can be designed that satisfies federalism concerns while still reserving room for use of the treaty power to achieve environmental benefits and supports this proposed framework by looking to the European experience in balancing international treaties and domestic regulation.Part IV analyzes portions of the ESA and the CWA that may be vulnerable to Lopez-Morrison challenge and demonstrates how attempts to rehabilitate provisions of these acts would fare under the proposed treaty power framework.