Law Commons^™

Tribal Air, Jonathan Skinner-Thompson

Publications

Prevailing approaches to addressing environmental justice in Indian Country are inadequate. The dual pursuits of distributive and procedural justice do not fully account for the unique factors that make Indigenous environmental justice distinct—namely, the sovereign status of tribal nations and the ongoing impacts of colonization.

This Article synthetizes interdisciplinary approaches to theorizing Indigenous environmental justice and proposes a framework to aid environmental law scholars and advocates. Specifically, by centering Indigenous environmental justice in terms of coloniality and self-determination, this framework can better critique and improve environmental governance regimes when it comes to pollution in Indian Country.

This Article tests that …

Procedural Environmental Justice, Jonathan Skinner-Thompson

Publications

Achieving environmental justice—that is, the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies—requires providing impacted communities not just the formal right, but the substantive ability, to participate as equal partners at every level of environmental decision-making. While established administrative policy purports to provide all people with so-called “meaningful involvement” in the regulatory process, the public participation process often excludes marginalized community members from exerting meaningful influence on decision-making. Especially in the environmental arena, regulatory decisions are often buried …

Environmental Justice And The Possibilities For Environmental Law, Sarah Krakoff

Publications

Climate change and extreme inequality combine to cause disproportionate harms to poor communities throughout the world. Further, unequal resource allocation is shot through with the structures of racism and other forms of discrimination. This Essay explores these phenomena in two different places in the United States, and traces law’s role in constructing environmental and economic vulnerability. The Essay then proposes that solutions, if there are any to be had, lie in expanding our notions of what kinds of laws are relevant to achieving environmental justice, and in seeing law as a possible tactic for instigating broader social change but not …

From Dirty To Green: Increasing Energy Efficiency And Renewable Energy In Environmental Justice Communities, Deborah N. Behles

Publications

The stifling summer heat that raged across the nation was difficult for everyone, but one group had a more difficult time than others—those who could not afford to cool their homes. Disparities like these will likely only get worse. Poor communities of color that are already vulnerable and disproportionately impacted by pollution will shoulder a larger burden of climate change impacts. These neighborhoods, often called environmental justice communities, have fewer resources to adapt to the effects of climate change. More measures should be taken to increase the development of renewable energy and energy efficiency in environmental justice communities before the …

Environmental Justice As An Essential Tool In Environmental Review Statutes — A New Look At Federal Policies And Civil Rights Protections And California’S Recent Initiatives, Alan Ramo

Publications

Recent litigation by the California Attorney General has sparked renewed interest in the role of environmental justice under federal and state project environmental review laws. Some say that inserting environmental justice into environmental review marks a “radical expansion” of the role of social justice in environmental review. Environmental justice is now a wellestablished federal legal doctrine addressing communities disproportionately exposed to environmental hazards as a result of their social or economic demographics. The doctrine is supported by President Clinton’s executive order, along with agency guidelines and regulations under the National Environmental Policy Act (“NEPA”), which govern federal project environmental review. …

Settler Colonialism And Reclamation: Where American Indian Law And Natural Resources Law Meet, Sarah Krakoff

Publications

Three hours west of Phoenix, Arizona, the Colorado River Indian Tribes (“CRIT”), a federally recognized tribe that includes over 3,700 enrolled members of Mohave, Chemehuevi, Navajo, and Hopi descent, occupies a reservation nearly 300,000 acres in size. The CRIT was one of five tribes to have its water rights confirmed in the landmark case of Arizona v. California, and therefore has senior rights to 719,248 acre-feet of Colorado River water, nearly one-third of Arizona’s allocation. How the CRIT came to be a single federally recognized tribe composed of members from four indigenous peoples located on lands that were a fraction …

Environmental Benefits And The Notion Of Positive Environmental Justice, Colin Crawford

Publications

Following the introductory section, the Article is divided into three parts. The first portion of Part 1 will chart the relatively thin case made in the U.S. literature for what this Article labels "positive environmental justice." The second section in Part 1 then looks outside the United States and analyzes an important and relatively recent decision of the Colombian Constitutional Court. The Colombian decision, which affirmed the constitutional and other international and domestic law rights of native and Afro- Colombian peoples in that country to make decisions regarding the use and exploitation of the nation's abundant forests," provides a nuanced …

Pursuing Environmental Justice: Obstacles And Opportunities - Lessons From The Field, Helen H. Kang

Publications

This article argues that the clinic‘s clients and similarly situated grassroots groups pursue litigation because the laws do not adequately protect them from pollution at the neighborhood level. Environmental lawsuits filed by such groups result from the conclusion that there is "too much" pollution in the neighborhood—there is elevated background pollution, violations of environmental laws contribute to excess pollution, and litigation is one of the few ways to redress the distributive injustice resulting from pollution created by multiple sources.

American Indians, Climate Change, And Ethics For A Warming World, Sarah Krakoff

Publications

Developing a sense of ourselves that would properly balance history and nature and space and time is a more difficult task than we would suspect and involves a radical reevaluation of the way we look at the world around us. Do we continue to exploit the earth or do we preserve it and preserve life? Whether we are prepared to embark on a painful intellectual journey to discover the parameters of reconciling history and nature is the question of this generation.

Environmental Justice In Cuba: Capital Needs, Developing A Tourist Infrastructure, And Liberty Of Access To National Resources, Colin Crawford

Publications

First, I will describe the role of tourism in the current Cuban economy and identify the environmental concerns this development poses. In particular, this analysis will explore the environmental justice concerns of Cuba's emerging tourist infrastructure. Second, the article will examine both practical and theoretical efforts to include claims for freedom of access to environmental benefits under the environmental justice rubric. The article will both examine the relevance and lessons of those efforts for Cuba and do so with reference to notions of liberty rather than equality-the standard principle on which environmental justice claims are advanced. This section will conclude …

Advancing Environmental Justice Norms, Clifford Rechtschaffen

Publications

Part I of this Article provides brief background on the environmental justice movement. Part 11 generally describes some of the challenges that environmental justice principles pose for the traditional environmental decision-making paradigm. Part III presents several specific examples of how environmental justice norms can be incorporated to improve the ethical outcomes of traditional agency decision making.

California's Energy Crisis - The Perils Of Crisis Management And A Challenge To Environmental Justice, Alan Ramo

Publications

California's energy crisis represented a profound moment in energy policy, crisis management and environmental justice. California's deregulation led to blackouts and rapid increases in ratepayer bills that eventually fueled the Governor's declaration of emergency and emergency legislation by the State Legislature. Lessons about deregulation, crisis management and environmental justice abound. This article is not an attempt to systematically and comprehensively analyze California's energy deregulation. It instead focuses on the repercussions of crisis management, particularly as it relates to environmental justice.

A Survey Of Federal Agency Response To President Clinton's Executive Order No. 12898 On Environmental Justice, Colin Crawford

Publications

Authors: Denis Binder, Colin Crawford, Eileen Gauna, M. Casey Jarman, Alice Kaswan, Bradford C. Mank, Catherine A. O'Neill, Clifford Rechtschaffen, and Robert R.M. Verchick.

Each of the authors reviewed the response of a specific federal agency to Executive Order No. 12898, relying extensively, but not solely, upon the responses to a prepared survey. Professor Binder then summarized and edited the individual responses into this cohesive, comprehensive study with the substantial assistance of the other authors. We gratefully acknowledge the assistance provided by the representatives of the individual agencies in preparing and responding, often at great length, to our inquiries. We …

Using Federal Property Rights Laws For Environmental Justice, Colin Crawford

Publications

The late Ralph Santiago Abascal, who worked for years out of California Rural Legal Services and became one of the most admired legal service attorneys of his generation, was co-counsel in a celebrated environmental justice victory, El Pueblo Para Aqua y Aire Limpio v. County of Kings. El Pueblo successfully blocked the proposed siting of a hazardous waste incinerator by holding that the project's proponents had not translated the public review documents into Spanish in a majority monolingual Spanish-speaking community. Despite this victory, however, Abascal later observed, "The handful of reported environmental justice cases that have raised civil rights claims …

Hunters Point: Energy Development Meets Environmental Justice, Alan Ramo

Publications

Community reaction to a proposal to build the first new power plant in decades in San Francisco has forced a California agency, the California Energy Commission (CEC), to hold the first ever evidentiary hearings explicitly on the issue of environmental justice. In the process, fundamental questions regarding civil rights, energy development, environmental decision-making and economic development in poor communities are being litigated. At stake is the public and economic health of a community and perhaps the conscience of our environmental regulatory system.

Analyzing Evidence Of Environmental Justice: A Suggestion For Professor Been, Colin Crawford

Publications

One effect of the environmental justice movement has been to draw attention to the prejudices inherent in some modem environmental policies. These prejudices are most apparent when analyzing the location of hazardous waste facilities throughout the country. Several recent environmental justice studies have debated whether the location of these facilities has a direct correlation to the percentage of minorities in the surrounding areas.

This article critiques some of the methodology of these recent studies, most notably that of Professor Vicki Been, to determine the rationale governing the placement of hazardous waste facilities. Furthermore, this article suggests that researchers should expand …

Strategies For Environmental Justice: Rethinking Cercla Medical Monitoring Lawsuits, Colin Crawford

Publications

This Article argues that by concentrating largely on expanding the scope of constitutional jurisprudence, lawyers and legal academics have failed to examine possibilities for strategic lawsuits using the elaborate array of existing federal environmental statutes. Specifically, both lawyers and legal academics have needlessly neglected or shied away from the medical monitoring lawsuit available under section 107(a)(4)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), to the disadvantage of potential environmental justice plaintiffs.