City versus Countryside: Environmental Equity in Context

This Article takes an approach to the problem of environmental equity that is different from the remedies advocated by the leaders of the environmental equity movement. The plea that the benefits of environmental protection be extended to all groups in society is, of course, a legitimate one, but the movement is too narrowly focused and its aims are too modest. I dissent from the two central premises held by environmental equity advocates. First, the movement assumes that judicially recognized and enforced rights will lead to improved public health. Second, the movement asserts that disadvantaged communities should adopt a “Not in My Backyard” (NIMBY) strategy. In contrast, I argue that the current focus of the environmental equity movement, important as it is, is too narrow because the legal strategy of the civil rights movement is largely inapplicable to environmental issues. Environmental protection is not a rights-based movement. Thus, the judiciary’s role in promoting environmental quality is limited compared to its role in promoting racial justice through the recognition and enforcement of constitutionally-based civil rights. In addition, I argue that the NIMBY strategy is equally shortsighted. Environmental equity takes current environmental protection strategies as a given at a time when the science and ethics of environmental protection are undergoing a profound re-evaluation

City versus Countryside: Environmental Equity in Context

This Article takes an approach to the problem of environmental equity that is different from the remedies advocated by the leaders of the environmental equity movement. The plea that the benefits of environmental protection be extended to all groups in society is, of course, a legitimate one, but the movement is too narrowly focused and its aims are too modest. I dissent from the two central premises held by environmental equity advocates. First, the movement assumes that judicially recognized and enforced rights will lead to improved public health. Second, the movement asserts that disadvantaged communities should adopt a “Not in My Backyard” (NIMBY) strategy. In contrast, I argue that the current focus of the environmental equity movement, important as it is, is too narrow because the legal strategy of the civil rights movement is largely inapplicable to environmental issues. Environmental protection is not a rights-based movement. Thus, the judiciary’s role in promoting environmental quality is limited compared to its role in promoting racial justice through the recognition and enforcement of constitutionally-based civil rights. In addition, I argue that the NIMBY strategy is equally shortsighted. Environmental equity takes current environmental protection strategies as a given at a time when the science and ethics of environmental protection are undergoing a profound re-evaluation

The Future of Environmental Rule of Law Litigation: Sixth Annual Lloyd K. Garrison Lecture on Environmental Law

Rule of law litigation is one of the most, if not the, most distinctive features of environmental law. Rule of law litigation seeks to convince courts to create new environmental protection rights and duties by strictly construing statutes to hold that an agency action that degrades the environment is ultra vires, by creatively reading statutes to find new substantive or by declaring strict procedural duties in broad delegations of agency discretion. The article asks whether this model of environmental law making can continue to sustain itself as environmental law moves into the second generation. This is an important, if not compelling question for the future of environmental law and protection because new developments in the underlying science on which environmental law has relied, in environmental governance institutions as well as changes in the judiciary and administrative law call into question both the jurisprudential basis and the effectiveness of rule of law litigation and require a critical reevaluation of the environmental movement\u27s heavy reliance on this strategy. The article discusses future sustainability of this strategy is open to question for two primary reasons. First, the strategy was always a fiction because courts were creating not finding law and all fictions break down over time as the need for them decreases and the fiction becomes more transparent. Second, the evolution of environmental law suggests that the rule of law litigation strategy will be less effective in the future as environmental protection and law enter the second generation, which will be less rule and regulation oriented

The Potential Role of Local Governments in Watershed Management

This Article examines the potential roles for local government in federal and state watershed protection initiatives designed both to enhance pollution abatement and to conserve biodiversity. Professor Dan Tarlock begins the article with a brief survey of the reasons for the current interest in watershed protection. He then goes on to situate local watershed protection and conservation initiatives in the broader context of the downward devolution of environmental protection competence that is now occurring. Professor Tarlock goes on to examine the selective options that local governments have to protect sensitive lands and enhance watershed quality and to incorporate watershed protection goals into growth management and smart growth programs. Professor Tarlock ends the paper with an examination of the impact of the Court\u27s property rights protection jurisprudence on these efforts