Law Commons^™

Environmental Justice And Environmental Law, Alice Kaswan

Alice Kaswan

This essay, prepared for the Fordham Environmental Law Review’s 20th Anniversary edition marking key developments in environmental law, addresses the past and future of environmental justice. From a historical perspective, it analyzes the central features of the environmental justice movement, its strengths and weaknesses in influencing environmental law, and the systemic reasons why environmental justice has struggled for influence in environmental policy. Looking forward, the essay focuses on how the environmental justice movement can contribute to the future of environmental law. Amplifying the voices of many environmental justice scholars, it argues that the environmental justice movement and its sister movement, …

Climate Change, The Clean Air Act, And Industrial Pollution, Alice Kaswan

Alice Kaswan

EPA has braved controversy by applying the Clean Air Act (CAA) to greenhouse gas (GHG) emissions from stationary sources, including utilities and industry. Because GHG controls inevitably affect combustion, they will impact traditional pollutants (termed “co-pollutants”). The Article first argues, as a threshold matter, that co-pollutant consequences are relevant to climate policy choices, and that considering those consequences will lead to improved environmental, administrative, and economic outcomes. It then reviews the CAA’s stationary source provisions and EPA’s implementation of them to date, discussing both the CAA’s potential and its limitations.

Moving beyond the CAA on its own terms, the Article …

Reconciling Justice And Efficiency: Integrating Environmental Justice Into Domestic Cap-And-Trade Programs For Controlling Greenhouse Gases, Alice Kaswan

Alice Kaswan

In the last thirty years, two opposing trends have emerged in environmental policy: environmental justice and market-based mechanisms. They present fundamental tensions. The environmental justice movement’s distributional goals conflict with market programs’ focus on cost-effectively achieving aggregate goals, without regard to distribution. And the environmental justice movement’s participatory goals conflict with market programs’ focus on industry autonomy and privatized decisionmaking. The tension between environmental justice and markets is arising in the context of cap-and-trade programs for greenhouse gases (GHGs). While GHGs do not impose localized harms, GHG trading policies nonetheless raise distributional issues because GHG gas emissions are inevitably accompanied …

Decentralizing Cap-And-Trade? The Question Of State Stringency, Alice Kaswan

Alice Kaswan

A cap-and-trade program is likely to be a centerpiece of federal climate change legislation. The presence of a national market does not, however, render irrelevant the states’ vital interest in the goals and operation of a national trading program. This Article addresses a first critical question about a state’s role in a federal system: whether federal legislation should allow states to be more stringent than the federal government and to achieve that stringency through controls on stationary sources. This Article reviews the compelling justifications for allowing states to be more stringent. It then assesses particular mechanisms for achieving state stringency …

Environmental Justice And Domestic Climate Change Policy, Alice Kaswan

Alice Kaswan

This article argues that, except in California, environmental justice considerations have not received sufficient attention in climate change policy debates. It explores the environmental justice implications of emerging domestic climate change policies and provides policymakers with specific suggestions on how to integrate environmental justice concerns. The article begins by introducing the environmental justice movement and its central principles, and then explores the limited integration of environmental justice concerns in existing climate change policies.

The article then clarifies existing debates about the environmental implications of greenhouse gas cap and trade programs by providing a detailed assessment of their distributional benefits and …

Environmental Justice: Bridging The Gap Between Environmental Laws And 'Justice', Alice Kaswan

Alice Kaswan

In this article, Professor Kaswan considers the sometimes-tense intersection between environmentalism and the environmental justice movement. Professor Kaswan first establishes a framework for evaluating the newly-emerging environmental justice movement, identifying its primary distributive and political justice strands. Professor Kaswan then notes the skeptical views of environmentalism presented in the environmental justice literature. She explains the underlying tension by analyzing the roots of the environmental movement and its early distance from the civil rights movement (from which the environmental justice movement arose), as well as the ways in which environmental law may inadvertently have exacerbated environmental problems for poor and minority …