By “We the People,” the framers meant ‘we the present generation,’ excluding women, African Americans, Native Americans, and many others. Of course, such deep flaws in our Constitution as written did not deter subsequent generations from improving it and making more “perfect” the Union the Constitution brought into existence. But constitutional law today often brings into stark relief how different in kind our “age of ecology” is from the age the framers inhabited. This Committee in ABA’s Section of Environment, Energy, and Resources is dedicated to exploring the growing conjunction of constitutional law and SEER’s practice areas and to serving its members with timely analysis, reporting of developments, and collegiality and cooperation across practice areas.

It is my privilege to Chair this group and I hope you’ll take this opportunity to check out the resources our Committee has provided in the past and is right now working to create. Most recently and perhaps of widest interest, the federal courts have found themselves enmeshed in suits against persons presently emitting greenhouse gases such as CO 2, methane, and sulfur dioxide. One of those, a Clean Air Act case, Massachusetts et al. v. EPA, 315 F.3d 50 (D.C. Cir. 2005), is currently on certiorari to the Supreme Court. But there are many others around the country being brought under various legal theories and the constitutional issues they raise run a gamut, from standing and the separation of powers to due process and other individual rights. These suits and their underlying controversies raise many constitutional questions, but they are perhaps more important for the systemic challenge they present to our legal system as a whole. The challenge is this: perhaps the single clearest theme of our Constitution is the fragmentation and checking of public power and the greatest obstacle of protecting the environment is in sustaining effective collective action. David Orr has called this the “mismatch between the way nature works in highly connected and interactive systems and the fragmentation of powers built into the Constitution.” Our committee will be considering the challenges raised by that “mismatch” this year through a number of different vehicles, including our Newsletter, Trends, panel discussions at SEER events, the development of a book collecting original essays on the conjunction of environmental and constitutional law, and others.

As our Action Plan makes clear, we have a lot planned already beyond just these climate change cases and we hope you’ll join us in these exciting projects.

Chair:
Robin K. Craig

Vice Chairs:
Committee Newsletters
Norman A. Dupont

Membership
Alan Sharett

Programs
Lisa B. Goldman

Public Service
Patricia Ross McCubbin

Technology
Joshua P. Fershee

The Year in Review
James R. May