Environmental Injustice and the Problem of the Law

Over the past fifteen years, legal academia has produced a sizeable body of scholarship on the widely acknowledged problem of environmental injustice. Although there have been positive responses in the policy arena, no similar level of concern is evident in the courts. Most legal claims directly addressing environmental injustice fail, recent developments in civil rights case law are discouraging, and current constructions of environmental laws are proving theoretically inadequate to protect communities already subjected to disproportionate toxic exposure or threatened by new pollution. This Comment explores the state of the law of environmental justice and offers an analysis of why the courts have proven so inhospitable to environmental justice claimants. In approaching this question, I begin with two basic premises: that the documented pattern of disproportionate environmental burden on low-income and minority communities in the United States is manifestly unjust, and that the meager protection our legal system has provided these communities to date is deeply troubling

The Obama Administration\u27s Clean Air Act Legacy and the UNFCC

This article is born of a panel discussion from September 18, 2015, regarding Regulating and Treaty-Making: Addressing Climate Change under the Obama Presidency. The article examines issues that affected discussions shortly before the final negotiations at the United Nations Climate Change Conference in Paris in 2015

Intrastate Preemption in the Shifting Energy Sector

The United States energy sector is in a state of transition, at once moving toward cleaner energy resources, but also expanding the use of fossil fuels with new access to oil and gas plays. Although federalism concerns have dominated the literature, I argue here that the state-local relationship and intrastate preemption are shaping energy policy in important and under-examined ways. The energy transition to date has been marked by growth centered on hydraulic fracturing (fracking) and commercial wind development, both of which are mostly regulated at the state level. Local governments have exerted authority over both forms of energy production, although state-local tensions in the fracking context have been especially pronounced. Hundreds of localities have opposed or sought to contain the effects of fracking through official action, including bans and moratoria. This striking trend, considered alongside local responses to wind development, provides a fresh lens through which to assess the role of intrastate preemption in the shifting energy sector. By approaching fracking and wind together, this Article represents a departure from the largely resource-segregated literature in favor of greater scholarly coherence on energy transition. As this Article explains, the doctrine of intrastate preemption, though it hews closely to its federal analogue, is uniquely nuanced by the variability of state-local power structures. I develop the claim that the unpredictable legal environment resulting from this variability works to enhance the prospects for local governments, and even more localized property interests, to inform national energy discours

NEPA and Environmental Justice: Integration, Implementation, and Judicial Review

The purpose of the National Environmental Policy Act (NEPA) is to assure “for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings,” a goal that is essential to environmental justice. Although NEPA provides the structure for federal environmental decisionmaking, is it effective as a tool for addressing environmental justice concerns? This Essay addresses NEPA’s limitations and potential for this purpose, and assesses the role of case law and judicial review in shaping this integrative process. To do so, it considers the environmental justice implications of NEPA’s structural gaps—including exemptions, categorical exclusions, and so-called “functional equivalents”— and evaluates judicial review of agencies’ environmental justice analyses to date

The Obama Administration\u27s Clean Air Act Legacy and the UNFCC

This article is born of a panel discussion from September 18, 2015, regarding Regulating and Treaty-Making: Addressing Climate Change under the Obama Presidency. The article examines issues that affected discussions shortly before the final negotiations at the United Nations Climate Change Conference in Paris in 2015

Reversing Course on Environmental Justice under the Trump Administration

This Article traces how policy reversals in the first years of the Trump Administration implicate protections for diverse, low-income communities in the context of environmental pollution and climate change. The environmental justice movement has drawn critical attention to the persistent inequality in exposure to environmental harms, tracking racial and income lines. As a result of decades of advocacy, environmental justice has become an established, if not realized, principle in environmental law. Shifting positions under the Trump Administration now undermine this progress. To illustrate, this Article uses three exemplary contexts — agency transition, environmental law implementation, and international relations on climate change — to outline the impacts of reversing course on environmental justice

Reversing Course on Environmental Justice under the Trump Administration

This Article traces how policy reversals in the first years of the Trump Administration implicate protections for diverse, low-income communities in the context of environmental pollution and climate change. The environmental justice movement has drawn critical attention to the persistent inequality in exposure to environmental harms, tracking racial and income lines. As a result of decades of advocacy, environmental justice has become an established, if not realized, principle in environmental law. Shifting positions under the Trump Administration now undermine this progress. To illustrate, this Article uses three exemplary contexts — agency transition, environmental law implementation, and international relations on climate change — to outline the impacts of reversing course on environmental justice

Synthesizing Energy Transitions

This Article assesses the growing and cross-disciplinary literature on energy transitions to explore how it can guide law and policy reforms for the energy sector. The modern conception of energy transition centers primarily on clean energy—a shift away from fossil energy dependence. It also, however, incorporates equity as a core principle, as an increasing emphasis on energy justice and just transition seeks to create guiding norms for the energy sector’s current state of change. The concept of energy transition is critical for describing and giving meaning to a fundamental societal shift at the local, regional, national, and global scales, aligned with the overarching goal enshrined in the Paris Agreement to sharply reduce greenhouse gas emissions contributing to climate change. The energy sector, being among the most significant contributors to global climate change, is not only essential to social and economic functionality and stability broadly but also intimately embedded in everyday life. Accordingly, various disciplines bring different emphases to understandings of transition in the energy context. Our synthesis of this wide-ranging literature demonstrates how the conceptual development of energy transitions across disciplines may enrich the application and depth of this concept in United States policy reform—particularly reforms designed to substantially increase investments in low-carbon energy sources, such as those enacted, for example, by federal legislation in 2021 and 2022

The Energy-Water Nexus

Speakers for the 2013 Symposium included Professor Joshua P. Fershee of West Virginia University; Professor Gabriel E. Eckstein of Texas A&M University School of Law; Professor Keith B. Hall, Louisiana State University; Professor Donald T. Hornstein from the University of North Carolina; Professor Shi-Ling Hsu, Florida State University; Professor Rhett Larson, of the University of Oklahoma; Professor Amanda Leiter, American University; Professor Uma Outka, University of Kansas; Professor Justin Pidot, of the University of Denver; Professor Melissa Powers from Lewis & Clark College; Mr. Jefferson D. Reynolds, Virginia Department of Environmental Quality; Dr. Benjamin K. Sovacool & Mr. Alex Gilbert from Vermont Law School; and Ms. Andrea Wortzel, of Troutman Sanders LLP