What Is Originalism?

Originalism is a judicial philosophy that holds the Constitution should be interpreted according to the meaning it had when it was ratified—either the original intent of its framers or, more commonly today, the original public meaning of its text. Prominent advocates like Justice Antonin Scalia and Robert Bork argued that this approach constrains judges from imposing their own policy preferences, anchoring decisions in historical understanding rather than evolving social norms. Modern originalism, as articulated by Justice Clarence Thomas and others, often emphasizes text and historical practice, giving rise to robust debates about how to apply eighteenth‑century language to twenty‑first‑century challenges. This philosophy has become especially consequential in environmental and climate change litigation, where courts must interpret constitutional provisions that predate modern regulatory states and ecological crises.

Historical Context: Environmental Law and the Constitution

For most of American history, environmental regulation was primarily a state and local matter. The federal government’s role expanded dramatically in the 1960s and 1970s with landmark statutes such as the Clean Air Act (1970), the Clean Water Act (1972), and the Endangered Species Act (1973). These laws drew on Congress’s power under the Commerce Clause, the Taxing and Spending Clause, and the Necessary and Proper Clause. The Supreme Court’s early commerce clause decisions, such as Gibbons v. Ogden (1824) and Wickard v. Filburn (1942), allowed broad federal authority. However, beginning in the 1990s with United States v. Lopez (1995) and United States v. Morrison (2000), the Court—increasingly influenced by originalist reasoning—began to narrow the scope of federal power under the Commerce Clause, casting doubt on the constitutional foundation of some environmental regulations.

Key Constitutional Provisions and Originalist Interpretations

Commerce Clause

The Commerce Clause grants Congress power to regulate interstate commerce. Originalist judges often examine whether environmental regulations involve “economic activity” that substantially affects interstate commerce. In Lopez, the Court struck down a gun‑free school zone law because it did not regulate commerce. Similarly, in Morrison, the Court invalidated the Violence Against Women Act. These decisions signaled that originalism could restrict federal environmental authority if a regulation reached noneconomic intrastate conduct. Yet in Gonzales v. Raich (2005), the Court upheld federal marijuana prohibition even for intrastate medical use, reasoning that the aggregate effect of such use could undermine federal drug enforcement—an approach that could also support broad environmental regulation. The tension remains: originalist judges must decide whether the original meaning of “commerce” includes activities that have cumulative effects on the environment, such as greenhouse gas emissions from small sources.

Takings Clause

The Fifth Amendment’s Takings Clause prohibits the government from taking private property for public use without just compensation. Originalist interpretations of “taking” have shaped environmental protection in significant ways. In Lucas v. South Carolina Coastal Council (1992), Justice Scalia (writing for the Court) held that a regulation depriving land of all economically beneficial use is a per se taking unless the restriction falls within “background principles” of nuisance and property law. Originalists view this as consistent with the Founders’ understanding that the government may not eliminate property rights without compensation. More recently, in Murr v. Wisconsin (2017) and Cedar Point Nursery v. Hassid (2021), the Court—again drawing on historical practice—expanded property rights in ways that can limit environmental regulators’ ability to restrict land use or impose conservation easements.

Tenth Amendment and Federalism

Originalists often emphasize the Tenth Amendment as a limit on federal power, reserving to the states all powers not delegated to the United States. In New York v. United States (1992) and Printz v. United States (1997), the Court struck down federal laws that commandeered state legislative or executive processes. These decisions underscore that, from an originalist perspective, the federal government cannot simply require states to implement federal environmental programs. This principle has direct implications for cooperative federalism under the Clean Air Act and Clean Water Act, where states often implement federal standards. If the Court applies originalism strictly, it might limit Congress’s ability to condition federal funding or preempt state authority in environmental matters.

Nondelegation Doctrine

The nondelegation doctrine holds that Congress cannot transfer its legislative power to executive agencies. For most of the twentieth century, the doctrine was largely dormant. But originalist judges, particularly Justice Gorsuch, have revived it in cases like Gundy v. United States (2019), where Gorsuch argued that the Sex Offender Registration and Notification Act gave the Attorney General too much discretion—violating the original meaning of Article I. If the nondelegation doctrine is resurrected, it could threaten the Environmental Protection Agency’s (EPA) authority to set emissions limits, establish air quality standards, or regulate greenhouse gases without highly specific congressional guidance. Originalism, in this context, could fundamentally reshape the administrative state that enforces environmental law.

Originalism in Environmental Administrative Law

Chevron Deference and Its Critics

Since Chevron U.S.A. v. Natural Resources Defense Council (1984), courts have deferred to reasonable agency interpretations of ambiguous statutes. Originalist scholars and judges have long criticized Chevron, arguing it allows agencies to expand their power beyond what the original public meaning of the statute permits. Justice Scalia famously dissented in Entergy Corp. v. Riverkeeper (2009), insisting on a more text‑driven approach. In 2024, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo, holding that the Administrative Procedure Act requires courts to exercise independent judgment—an outcome consistent with originalist principles. This decision likely makes it harder for agencies like the EPA to interpret broad statutes (e.g., the Clean Air Act) in novel ways, especially for climate change regulation.

Major Questions Doctrine

The major questions doctrine requires clear congressional authorization before an agency can regulate an issue of vast economic or political significance. The Supreme Court applied this doctrine in West Virginia v. EPA (2022), striking down the EPA’s Clean Power Plan because Congress had not clearly authorized that particular mechanism for reducing greenhouse gas emissions. The Court’s reasoning drew heavily on the original meaning of statutes and the importance of legislative clarity—hallmarks of originalist methodology. This decision directly limits the EPA’s ability to address climate change without specific new legislation, likely affecting future carbon regulation and renewable energy mandates.

Originalism and Climate Change Litigation

Massachusetts v. EPA (2007)

In this landmark case, the Supreme Court held that the EPA had the authority under the Clean Air Act to regulate carbon dioxide and other greenhouse gases as “air pollutants.” The Court also found that Massachusetts had standing to challenge the EPA’s inaction, partly because of the state’s unique interest in protecting its coastline from rising seas. Originalist justices might have questioned both the broad interpretation of “air pollutant” and the expansive standing analysis. Justice Scalia dissented, arguing that the EPA properly declined to regulate based on policy considerations. The case illustrates how originalism can push courts toward narrower readings of environmental statutes and more restrictive standing requirements.

American Electric Power v. Connecticut (2011)

After Massachusetts v. EPA, the Court ruled that the Clean Air Act displaces federal common law claims for nuisance by emitters of greenhouse gases. The unanimous decision, written by Justice Ginsburg, avoided deep originalist analysis. But some originalist scholars have argued that federal common law should play a backstop role when statutes are silent, while others contend that original meaning requires clear statutory command before preempting traditional state tort law. The case shows the complexity of translating originalism to modern climate disputes.

Juliana v. United States

In the youth climate lawsuit Juliana v. United States, plaintiffs argued that the federal government’s failure to address climate change violated their constitutional rights to life, liberty, and property under the Fifth Amendment. The Ninth Circuit dismissed the case in 2020, citing lack of standing and the political question doctrine. Originalist judges on the panel emphasized that the Due Process Clause does not guarantee a climate system capable of sustaining human life—a right not rooted in the Constitution’s original meaning. This case demonstrates how originalism can foreclose creative environmental claims based on evolving conceptions of fundamental rights.

Contemporary Debates and Criticisms

Originalism vs. Living Constitutionalism on Environmental Issues

Proponents of a “living constitution” argue that the Framers could not have anticipated modern environmental degradation and that the Constitution must be interpreted flexibly to meet new challenges. Originalists respond that the Constitution’s open‑ended phrases (e.g., “commerce,” “property,” “due process”) can accommodate new applications as long as the core meaning remains stable. For instance, “commerce” in the 1790s did not include interstate electronic communication, but originalists like Scalia argued that Congress could regulate it as long as the activity fell within the historical concept of commerce—economic exchange. Similarly, greenhouse gas emissions that cross state lines might be regulated under the same principle. The debate continues over whether originalism truly allows sufficient authority to address global climate change or whether it unduly hampers federal action.

Critiques: Originalism May Be Ill‑Suited for Modern Environmental Problems

Critics contend that originalism’s focus on eighteenth‑century understandings makes it inadequate for tackling issues like carbon pricing, ozone layer protection, or species extinction. They point out that the original public meaning of phrases like “general welfare” or “commerce” may not encompass global commons problems that cross national boundaries. Additionally, originalism tends to privilege states’ rights and property protections, which can collide with environmental goals such as clean air and water. Many environmental law scholars argue that originalism is simply a pretext for deregulation, noting that conservative justices often apply it selectively to achieve policy outcomes.

Defenses: Originalism Provides Stability and Limits Judicial Activism

Defenders of originalism, including Justice Neil Gorsuch and Judge Amy Coney Barrett, argue that the philosophy prevents judges from imposing their partisan preferences. In environmental cases, they say, originalism ensures that courts do not rewrite statutes or invent new rights. Instead, it forces political branches to take responsibility for enacting clear and specific environmental legislation. For example, after West Virginia v. EPA, the onus is on Congress to explicitly authorize a carbon regulation regime—an outcome originalists view as constitutionally appropriate. They also note that originalism does not foreclose environmental action; it merely channels it through the proper constitutional processes of legislation, state action, and property law.

Conclusion

Originalism exerts a powerful and growing influence on the judiciary’s approach to environmental and climate change litigation. By anchoring constitutional interpretation in historical meaning, originalist judges often narrow federal regulatory authority, require explicit legislative direction, and protect property rights—all of which can limit the government’s ability to respond to environmental crises. Yet originalism is not a monolithic barrier; its principles can also support carefully crafted federal environmental statutes when they align with the original understanding of congressional power. As the nation confronts increasingly complex ecological challenges, the tension between originalist doctrine and the need for adaptive governance will continue to play out in courtrooms across the country. Understanding this dynamic is essential for students, teachers, and anyone seeking to comprehend the intersection of constitutional law and environmental policy.

For further reading, explore the full text of key cases on Oyez, analyses of originalism on SCOTUSblog, and scholarly discussions in the Harvard Law Review. The EPA’s official site provides detailed information on the statutes affected by originalist rulings. Finally, the Legal Information Institute offers a clear definition of originalism and its variants.