Putting the Constitutional Horse Before the Cart: Federal Jurisdiction over Next Generation Environmental Assessment

Abstract

This thesis explores the extent of federal jurisdiction over a next generation environmental assessment (EA) model proposed by Sinclair, Doelle and Gibson. Examining the jurisprudence and literature, it analyses the scope of federal constitutional authority during the triggering, information-gathering and analysis and decision-making stages of project, strategic and regional assessment. A federal next generation EA law focused on impacts on areas of federal authority could be upheld under various federal constitutional heads of power. Federal jurisdiction is most important at decision-making, and authority to trigger an assessment should be based on the low jurisdictional threshold of reasonable probability of federal effects. Where federal impacts will occur or undertakings otherwise engage federal jurisdiction, authorities have broad authority to consider all relevant impacts. Next generation EA’s emphasis on multijurisdictional cooperation aligns with courts’ preference for cooperative federalism and therefore may make courts more tolerant towards overlap, especially where cooperation occurs.