This Article proposes a framework for applying the treaty power that would accomplish the goal of environmental regulation. 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.
Katrina L. Fischer, 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, 22 Va. Envtl. L.J. 167 (2004), http://digitalcommons.pace.edu/lawfaculty/1066/.