Law Commons^™

Federal Environmental Justice Legislation And Regulations, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

State Sequestration: Federal Policy Accelerates Carbon Storage, But Leaves Full Climate, Equity Protections To States, Gabriel Pacyniak

Faculty Scholarship

Abstract

The Intergovernmental Panel on Climate Change—the UN’s expert science panel—has repeatedly found that limiting climate change to prevent catastrophic harms will require at least some use of carbon capture and sequestration (CCS), and may entail substantial deployments of this technology. There is significant uncertainty, however, about the level of lifecycle greenhouse gas (GHG) reductions achievable in practice from varying CCS applications; some applications could even lead to net increases in emissions. In addition, a number of these applications create or maintain other harms, especially those related to fossil fuel extraction and use. For these reasons, many environmental justice advocates …

Beyond Bake Sales: Environmental Justice Through Superfund Removal Actions, Clifford Villa

Faculty Scholarship

Few people outside of EPA seem to be aware of the existence of the Superfund removal program, a program through which millions of dollars are allocated through EPA’s ten regional offices each year for cleaning up contaminated sites that are not designated 'Superfund' sites. This essay will provide a basic introduction to the Superfund removal program and particularly encourage consideration of Superfund removals to address growing concerns for environmental justice. Part II examines the legal authorities and limitations of the Superfund removal program. Part III provides examples of removal actions in environmental justice communities across the country. Part IV considers …

Don't Blame The Flint River, Clifford Villa

Faculty Scholarship

Since appearing in modern form fifty years ago, the Clean Water Act has proven a powerful force for environmental justice, helping to clean up urban waterways across the country. Through establishment of water quality standards and enforcement of regulatory requirements, the Clean Water Act has compelled public authorities and private companies to upgrade infrastructure and curtail
discharge of sewage and other industrial effluent. At the same time, urban communities have continued to struggle with water pollution beyond the reaches of the Clean Water Act. This Article briefly examines three such communities: the Anacostia area of Washington, D.C.; the neighborhoods along …

Brownfields Cleanup: A Look Back And Ahead Toward Superfund Authority, Clifford Villa

Faculty Scholarship

Did you know that the U.S. Environmental Protection Agency, through the Superfund program within each of the ten regional offices across the United States, has millions of dollars to spend each year for cleaning up contaminated sites that are not designated “Superfund” sites? Not many people seem to know that, even lawyers who practice in environmental law, or even law professors who teach it. If these elite folks do not know that, then how would ordinary community members know that, people with busy lives who don’t do Superfund for a living? The short answer is, they probably don’t know either.

Emerging State-Level Environmental Justice Laws, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Environmental justice (EJ) has grown in prominence in the political discourse in the last several years While most of the attention has gone to federal actions, several states have just adopted their own laws to advance EJ.

The basic idea behind EJ is that disadvantaged communities should not be disproportionately exposed to environmental hazards, that these communities should have a say in the actions that affect their environment, and that the environmental laws should be vigorously enforced there.

Reconciling Environmental Justice With Climate Change Mitigation: A Case Study Of Nc Swine Cafos, D. Lee Miller, Ryke Longest

Faculty Scholarship

For thirty years, the swine industry has externalized severe environmental and health harms onto poor communities of color in Eastern North Carolina. This “Big Pig” problem is caused by the confinement, consolidation, and concentration of industrial hog operations within the low, flat, and economically marginalized Coastal Plain. Big Pig’s rise was not inevitable. As recently as 1982, more than 11,000 small swine farms freckled nearly all of North Carolina’s 100 counties. Then came the “boom” of consolidation and industrialization that transformed hog production into a highly consolidated and vertically integrated industry.

New York Environmental Legislation In 2019, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In 2019, with the Democrats newly in full control of the State Senate, the Assembly and the Governor’s office, New York adopted more environmental legislation than it had in more than a decade. This included a sweeping climate change statute, a new environmental justice article in the Environmental Conservation Law, and a statewide ban on plastic carryout bags. This annual survey reports on these developments and numerous other laws targeting environmental concerns.

This Is The Moment Of Truth, Ray León, Roger Lin, Camille Pannu, Irene Vasquez

Faculty Scholarship

While everyone is taking their seats, I wanted to quickly just thank the prior panelists today and bring it full circle, back to Mustafa’s opening keynote, where he asked, “Who is fighting these fights? Who is doing this work in fighting for justice?” He pointed out that many of the people fighting these fights, many of the advocates, are people who look like you and are also the same age as you. That is why we have this panel. What can you, as students, do to get involved in the environmental justice or social justice movements?

My name is Roger …

Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg

Faculty Scholarship

Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice.

Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and …

The Long Environmental Justice Movement, Jedediah Purdy

Faculty Scholarship

The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put …

The Long Environmental Justice Movement, Jedediah S. Purdy

Faculty Scholarship

The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put …

What Does Environmental Justice Mean In An Era Of Global Climate Change?, Michael B. Gerrard

Faculty Scholarship

The 1990s saw the emergence of the issue of environmental justice – the disproportionate exposure of low-income and minority communities to environmental hazards - into the U.S. political sphere. The 2000s saw the emergence of global climate change as a political concern. Neither has led to significant legislation at the federal level, and thus old laws designed for different purposes are being utilized with decidedly mixed results.

This article addresses the confluence of environmental justice and global climate change. The two interact in complex ways, as do the approaches to dealing with them both.

The magnitude of the climate challenge …

New York's Revived Power Plant Siting Law Preempts Local Control, Michael B. Gerrard

Faculty Scholarship

Taking most observers by surprise, the New York State Legislature on June 22, 2011, overwhelmingly passed The Power NY Act of 2011. Governor Andrew Cuomo signed it on Aug. 4. The new law revives Article X of the Public Service Law after a nearly nine-year hibernation. As before, the law creates a one-stop, state-led program for permitting electric generating facilities while preempting local requirements. But the new Article X differs from its predecessor in several important ways: It covers facilities as small as 25 megawatts (down from the prior 80 megawatts threshold), it has even more generous provisions for funding …

Seven Things The New Epa Administrator Should Do, Michael B. Gerrard

Faculty Scholarship

In view of the dramatic shift in the nation's environmental policy that is presaged by the ascension of Barack Obama, I have been asked to suggest several actions that should be undertaken by the new administrator of the Environmental Protection Agency (EPA).

This article was written on Jan. 26, 2009, six days after the inauguration. It is to appear in March. Thus every reader will know something that, today, I don't – what long-pent-up actions were taken by President Obama shortly after he moved into the Oval Office. But I am guessing that by the time this article appears, Lisa …

Private Lawyers And Environmental Justice, Michael B. Gerrard

Faculty Scholarship

A private lawyer representing a private client is seldom a crusader. When environmental justice is relevant to a particular matter – the client proposes to build a facility and engages the lawyer to help secure necessary governmental approvals, for example-the lawyer's primary duty must be to the client.

The client in such a case faces two primary types of questions: substantive, such as where and how to build the facility; and procedural, deciding what processes to follow and how much to involve the community in the planning. Typically, by the time the lawyer is brought in, the client already has …

Environmental Justice In An Era Of Devolved Collaboration , Sheila R. Foster

Faculty Scholarship

Environmental decision-making is undergoing a profound shift. Traditional forums and processes are being displaced by mechanisms emphasizing local, "place-based" decision-making. These emerging decision-making mechanisms are orchestrated through collaborative processes featuring stakeholders from both the public and private sectors. This transformation is evident in a number of recent governmental initiatives, including those by the Environmental Protection Agency ("EPA"), most notably its Community-Based Environmental Protection ("CBEP") initiative. Other federal agencies, particularly those with land or species management responsibilities, have similarly advocated a greater role for local decision-makers and collaborative problem-solving. This Article examines the points of convergence and divergence between devolved collaboration …

Reflections On Environmental Justice, Michael B. Gerrard

Faculty Scholarship

Environmental justice is a very hot topic. Yesterday's New York Times on the front page of the Metropolitan section had a story stating: Mid-Sized Plants Headed to Poor Areas. The story stated, "The Pataki administration acknowledges in its own study that the electric generators that it wants to install around New York City would go into poor heavily minority communities, a finding that supports some of the arguments of the project's opponents. This is quoting an unreleased environmental justice analysis that may or may not be valid, but it certainly shows how hot a topic it is. This morning …

Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard

Faculty Scholarship

The boom times for environmental lawyers were the late 1980s and the early 1990s. The June 1990 issue of Money magazine called environmental law a "fast-track career." Two or three years of experience with the U.S. Environmental Protection Agency (EPA), a state environmental agency, the environmental units of the Justice Department, or a state attorney general's office were a ticket to a high-paying job in the private sector. Law students were clamoring to enter the field and law firms were scrambling to find experienced environmental lawyers, or to recycle newly underemployed antitrust lawyers into this burgeoning field.

Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard

Faculty Scholarship

There are 3,119,963 square miles in the continental United States. That sounds like plenty of space to put just about anything. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era – unconstrained siting – lasted until the late 1960s. Then began the second era – protecting natural areas. In the early 1990s, we embarked upon a third era – environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that …

The Past, Present And Future Of Title Vi Of The Civil Rights Act As A Tool Of Environmental Justice, Michael B. Gerrard, Nicholas Johnson, Peggy Shepard, Melva J. Hayden, Sheila Foster, Elizabeth Georges

Faculty Scholarship

Mr. Michael Gerrard: I am going to try to do something a little unconventional. After hearing some remarks from Professor Johnson, I will try to start a dialogue. I have been requested to ask very tough questions of our panelists, so I will do that in the hope of drawing all of you in the audience into the dialogue. First, we will hear some remarks from Professor Nicholas Johnson of Fordham University School of Law.

Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard

Faculty Scholarship

The Superfund program is perhaps environmental law's best Rorschach test, in which those who write about the national effort to clean up contaminated sites disclose as much about their own philosophies of justice, democracy, and economic efficiency as about environmental legislation. The ten books reviewed here show deep conflicts among these values. I argue, based on these disparate judgments, that many of the Superfund debates have an almost religious character. The law has been shaped to fit the view that demonic polluters were, and remain, at work. The law also reflects a sense of higher duty to future generations – …

The Role Of Existing Environmental Laws In The Environmental Justice Movement, Michael B. Gerrard

Faculty Scholarship

I will focus on what can and cannot be done under the existing statutory and regulatory structures and the common law to protect minority communities from environmental hazards. I will highlight some of the current holes in the legal system to suggest areas where statutory reform might be useful. Fights against these facilities break down between future unbuilt facilities, on the one hand, and existing facilities on the other hand.

A broad array of statutes regulates future facilities, such as landfills, incinerators, interstate highways, and polluting factories. Some of these laws are aimed at providing information and requiring the decision …