Constitutional Dilemmas Posed by State Policies Against Marine Pollution - The Maine Example

The physical fact about coastal pollution is that, since many of its harms are irreversible, it must be prevented and not just dealt with as it arises. The legal fact about coastal pollution is that legislation which aims to prevent pollutants must survive attacks under the due process, equal protection, commerce, and privileges and immunities clauses of the federal Constitution if we are not to lose entirely the enjoyment of our coastal waters. As the following discussion of the "Environmental Protection Package" passed by the First Special Session of the 104th Maine Legislature and the earlier Wetlands Act shows, judicial modifications of prior theories are needed to withstand these constitutional attacks. First, judges must take into account counsel's new legal arguments advocating a shift from traditional doctrines which favor unabated pollution.

Second, burdens of proof must be shifted to those who claim constitutional protections for their polluting activity. The following discussion proposes ways of buttressing briefs in both types of cases.