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

Is a Substantive, Non-Positivist United States Environmental Law Possible?

U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental law is not possible because the law can only serve to establish rational processes for resolving deep and bitter resource use conflicts. This Article argues that international environmental law can serve as a source of mixed proceduralsubstantive principles because it has taken a much more holistic view of the environment, developed a set of overarching norms—soft as they are—that apply to almost all environmental problems, and has done a better job of linking procedure with substance in order to constrain decisions that adversely impact human and ecosystem “health.” The Article offers three proposed principles to strengthen the unfulfilled project of environmental protection. First, procedural duties must be linked to the implementation of substantive outcomes. Second, incomplete information must be a basis for regulatory actions, provided that a minimal scientific threshold of risk is established, processes are in place to acquire additional information, and the decision maker can adjust to changed circumstances. Third, decisions should exhibit planetary stewardship by applying the best available technology, utilizing the polluter pays principle, promoting an accepted standard of sustainable development, adopting the least intrusive resource use option with adaptive feedback, and restoring degraded ecosystems

Is a Substantive, Non-Positivist United States Environmental Law Possible?

U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental law is not possible because the law can only serve to establish rational processes for resolving deep and bitter resource use conflicts. This Article argues that international environmental law can serve as a source of mixed proceduralsubstantive principles because it has taken a much more holistic view of the environment, developed a set of overarching norms—soft as they are—that apply to almost all environmental problems, and has done a better job of linking procedure with substance in order to constrain decisions that adversely impact human and ecosystem “health.” The Article offers three proposed principles to strengthen the unfulfilled project of environmental protection. First, procedural duties must be linked to the implementation of substantive outcomes. Second, incomplete information must be a basis for regulatory actions, provided that a minimal scientific threshold of risk is established, processes are in place to acquire additional information, and the decision maker can adjust to changed circumstances. Third, decisions should exhibit planetary stewardship by applying the best available technology, utilizing the polluter pays principle, promoting an accepted standard of sustainable development, adopting the least intrusive resource use option with adaptive feedback, and restoring degraded ecosystems

The Legal-Political Barriers to Ramping up to Hydro

Hydroelectric energy is the oldest major source of non-carbon, renewable energy and is the only conventional renewable resource in the current energy mix. Increased hydro capacity would seem to be a key element of any United States energy policy designed to promote the greater use of renewable resources. However, for several decades hydro has been perceived as a mature, fully developed technology. This article argues that any effort to stimulate substantial new hydro capacity will face a series of environmental legal and policy constraints. Efforts to adapt to global climate change will further complicate efforts to increase hydro electric generation. Beginning in the late 1960s, the United States stopped building new, large dams. A host of environmental laws such as the Clean Water Act and the Endangered Species Act do not displace hydropower generation, but these laws impact individual dam operations and can result in the partial or even total subordination of power generation to downstream flow regulation. These laws reflect a deeper shift in our thinking about river functions. The idea of a normative river has emerged. The normative river accepts the reality that many rivers have been fundamentally altered by dams but seeks to create a new managed hydrograph that performs a reasonable range of pre-dam river functions