Supreme Court

Prior to the rise of the environmental movement and the great increases in regulation of the environment by the U.S. Congress through its statutory authority as administered by the Environmental Protection Agency (EPA) and other bureaucratic agents, the U.S. Supreme Court was involved in environmental regulation. With its constitutional authority it exercised judicial review in regard to the constitutionality of legal issues in environmental cases. However, most of the cases involved tort law and principles of the common law. Some of the types of cases the Supreme Court reviewed included cases of water rights and a growing number of matters involving conservation. Other cases involved interpretations of federal and state laws. Some involved constitutional issues arising from federal laws, regulations, or actions; some involved the constitutionality of state laws. Other cases arose in response to conservation laws and later environmental laws passed by Congress in increasing numbers after the 1960s.

Prior to the 1960s, federal laws concerning the environment were focused on conservation. A number of Supreme Court cases came up as Americans began to seek to protect the last buffalo or the last stands of virgin timber or other natural resources endangered at the time. An important case involving conservation was Missouri v. Holland, U. S. Game Warden, 252 U. S. 416 (1920). Legally the case involved the inherent powers of the government of the United States in foreign affairs.

Missouri is located on one of the great migratory flyways. Every autumn vast flocks of birds flying south for the winter transit Missouri. Water fowl, especially geese and ducks, flying in their V-shaped wedge formations, annually silhouette the sky with skein after skein stretching as far as the eye can see. By the early 1900s, the State of Missouri, like all American states, had established hunting regulations to allow the hunting of migratory birds. One of the reasons for Missouri's hunting regulations was a concern for conservation. However, another reason was the interest in the money generated by hunting and hunting licenses.

Conservationists at the time were very concerned about hunting that could exterminate some species. However, in response to conservationist concerns Congress also passed a law in 1913 to regulate the hunting of migratory birds. Two federal district courts declared the law to regulate the hunting of migratory birds based on the commerce clause to be unconstitutional because there is nothing expressed or implied in the Constitution to authorize the regulation. The cases were not appealed.

On July 3, 1918, Congress passed the Migratory Bird Treaty Act as legislation to implement the Migratory Bird Treaty of December 8, 1916, with Great Britain acting on behalf of Canada. Missouri sued to stop Ray P. Holland, a federal game warden, from enforcing the law. Missouri argued that the law and hence the treaty were not authorized by the constitution; that the treaty infringed upon Missouri powers, reserved to it by the Tenth Amendment; and that once the birds entered Missouri air space they became the property of the State of Missouri.

Justice Oliver Wendell Holmes, in a short, cryptic opinion, concluded that the Government of the United States did, in foreign affairs, have the authority “under the Constitution” to make treaties and to implement them under the necessary and proper clause: Article I, Section 8. He also concluded all treaties are the law of the land (Article VI) so the claims of Missouri could not limit the treaty-making power of the federal government. Justice Holmes also dismissed Missouri's claim to a property interest in migrating birds by noting that they were wild and the property of no one.

...