Environmental Justice as Civil Rights

Environmental justice litigation using the Equal Protection Clause and civil rights statutes has largely failed. This article explains that failure as a result of a general shift by federal courts to limit the scope of civil rights law rather than an improper characterization of environmental justice as a civil rights issue. This explanation is important to both encourage and caution environmental justice advocates and scholars as they approach claims under Title VIII. I suggest that Title VIII\u27s ability to bridge property and dignity may still present a powerful and much-needed tool for bringing equality to environmental law, but that, based on recent treatment of civil rights in the courts, those concepts should be bridged outside of the civil rights context first. Thus, I recommend that environmental justice scholars and advocates shift their focus from litigating civil rights claims to building the conceptual and doctrinal connection between environmental quality, property, and personal dignity through the administrative process, tort suits, and other means before making the leap to Title VIII

How Circuits Can Fix Their Splits

The desire to avoid conflicts between the regional circuits of the federal courts of appeals, commonly known as “circuit splits,” has had an immense influence on the structure and operation of the federal appellate courts for roughly a century. Over time, the Supreme Court has been assigned responsibility for resolving these conflicts. Yet as overall federal caseloads have increased, this reliance on the Supreme Court has imposed serious and well-recognized burdens on the operation of the federal courts. For decades scholars have debated bold proposals to address these problems, such as creating a new national court dedicated to resolving conflicts or fundamentally restructuring the Supreme Court. This Article offers a straight-forward yet transformational proposal overlooked in these debates: let the courts of appeals resolve their conflicts on their own. This Article argues that the federal courts of appeals should resolve circuit splits on their own, rather than rely on the Supreme Court, and lays out how they could do so. A judge-made doctrine known as the “law of the circuit” prohibits a later panel of a court of appeals from revisiting an earlier panel’s decision, even when the earlier decision has resulted in a conflict with another circuit. Because practically all work in the courts of appeals is done by three-judge panels, the law of the circuit doctrine has the effect of locking conflicts in place—the first circuit to address an issue cannot confront the reasons that motivated a latter circuit to come to a different conclusion. Instead, every circuit gets one chance to weigh in and, as a practical matter, no circuit can ever resolve the conflict. I therefore propose relaxing the law of the circuit doctrine when a circuit’s prior decision has resulted in a conflict with another circuit. This proposal is narrowly tailored, identifying tools already in use in some courts of appeals that would allow them to relax the doctrine and revisit a prior decision, but only where that prior decision has subsequently resulted in a conflict with another circuit. This creates the opportunity to address the conflict without Supreme Court intervention while maintaining the existing doctrine’s benefits in the vast majority of the court of appeals’ cases. Yet the proposal is also transformational, fundamentally changing the relationship between the federal appellate courts by empowering the courts of appeals to engage in dialogue with each other and reducing reliance on the Supreme Court. This Article therefore offers a realistic proposal for achieving important structural and institutional improvements in the federal courts at a lower cost and with less disruption than existing proposals

Environmental Justice as Civil Rights

Environmental justice litigation using the Equal Protection Clause and civil rights statutes has largely failed. This article explains that failure as a result of a general shift by federal courts to limit the scope of civil rights law rather than an improper characterization of environmental justice as a civil rights issue. This explanation is important to both encourage and caution environmental justice advocates and scholars as they approach claims under Title VIII. I suggest that Title VIII\u27s ability to bridge property and dignity may still present a powerful and much-needed tool for bringing equality to environmental law, but that, based on recent treatment of civil rights in the courts, those concepts should be bridged outside of the civil rights context first. Thus, I recommend that environmental justice scholars and advocates shift their focus from litigating civil rights claims to building the conceptual and doctrinal connection between environmental quality, property, and personal dignity through the administrative process, tort suits, and other means before making the leap to Title VIII

Community Empowerment in Decarbonization: NEPA’s Role

This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions of the transition—including the development of renewable energy projects. The Biden Administration has committed to both ambitions, but there is a gap regarding what role communities will play in policies designed to implement decarbonization. This Article articulates this “participatory gap” in decarbonization policy and proposes changes to the regulations implementing the National Environmental Policy Act of 1969 (NEPA) that start bridging these ambitions. The Article offers proposals that would leverage NEPA’s unique structure to empower communities in decarbonization. Specifically, it argues that NEPA’s regulations should be reformed to require meaningful community engagement and enforce that commitment through a revitalized executive enforcement structure. Contrary to views that more community engagement will slow decarbonization, this Article argues that these reforms would support the rapid transition to renewable energy while also empowering communities and elevating justice as a central value in environmental policy

Prioritizing Proximity in Phasing Out Oil and Gas Extraction

To avoid the most catastrophic impacts of climate change, most of the world’s oil and gas reserves must remain in the ground. In the United States, this would require a dramatic phaseout of oil and gas extraction nationwide over the coming decades. How could we accomplish this? While recent legal scholarship emphasizes the importance of a just transition away from oil and gas extraction, little work has been done to navigate the legal, political, and equity hurdles associated with phasing out oil and gas extraction. This Article seeks to start this conversation by offering one way to approach phaseouts of oil and gas extraction in the United States: prioritize phasing out extraction closest to people. This intuitive approach builds on the success of frontline communities in California and Colorado advocating for statewide setbacks that prioritize regulating oil and gas extraction closest to their communities. Among other virtues, this advocacy has successfully drawn the connection between the localized harms of oil and gas extraction on communities of color and low-income communities to the larger climate impacts of continued oil and gas extraction. This Article argues that phaseout policies should follow these communities’ lead and articulates several priorities for doing so: (1) stopping new extraction closest to people, (2) monitoring continued extraction closest to people, (3) plugging and reclaiming wells closest to people, and (4) matching proximity-based phaseouts with decarbonization programs. This approach to managing the decline of oil and gas extraction in the United States places such policies on the strongest footing against legal challenges while also targeting the roots of political support for extraction by reducing local dependency and supporting communities that have borne the direct impacts of fossil fuel extraction

How Circuits Can Fix Their Splits

The desire to avoid conflicts between the regional circuits of the federal courts of appeals, commonly known as “circuit splits,” has had an immense influence on the structure and operation of the federal appellate courts for roughly a century. Over time, the Supreme Court has been assigned responsibility for resolving these conflicts. Yet as overall federal caseloads have increased, this reliance on the Supreme Court has imposed serious and well-recognized burdens on the operation of the federal courts. For decades scholars have debated bold proposals to address these problems, such as creating a new national court dedicated to resolving conflicts or fundamentally restructuring the Supreme Court. This Article offers a straight-forward yet transformational proposal overlooked in these debates: let the courts of appeals resolve their conflicts on their own. This Article argues that the federal courts of appeals should resolve circuit splits on their own, rather than rely on the Supreme Court, and lays out how they could do so. A judge-made doctrine known as the “law of the circuit” prohibits a later panel of a court of appeals from revisiting an earlier panel’s decision, even when the earlier decision has resulted in a conflict with another circuit. Because practically all work in the courts of appeals is done by three-judge panels, the law of the circuit doctrine has the effect of locking conflicts in place—the first circuit to address an issue cannot confront the reasons that motivated a latter circuit to come to a different conclusion. Instead, every circuit gets one chance to weigh in and, as a practical matter, no circuit can ever resolve the conflict. I therefore propose relaxing the law of the circuit doctrine when a circuit’s prior decision has resulted in a conflict with another circuit. This proposal is narrowly tailored, identifying tools already in use in some courts of appeals that would allow them to relax the doctrine and revisit a prior decision, but only where that prior decision has subsequently resulted in a conflict with another circuit. This creates the opportunity to address the conflict without Supreme Court intervention while maintaining the existing doctrine’s benefits in the vast majority of the court of appeals’ cases. Yet the proposal is also transformational, fundamentally changing the relationship between the federal appellate courts by empowering the courts of appeals to engage in dialogue with each other and reducing reliance on the Supreme Court. This Article therefore offers a realistic proposal for achieving important structural and institutional improvements in the federal courts at a lower cost and with less disruption than existing proposals

Prioritizing Proximity in Phasing Out Oil and Gas Extraction

To avoid the most catastrophic impacts of climate change, most of the world’s oil and gas reserves must remain in the ground. In the United States, this would require a dramatic phaseout of oil and gas extraction nationwide over the coming decades. How could we accomplish this? While recent legal scholarship emphasizes the importance of a just transition away from oil and gas extraction, little work has been done to navigate the legal, political, and equity hurdles associated with phasing out oil and gas extraction. This Article seeks to start this conversation by offering one way to approach phaseouts of oil and gas extraction in the United States: prioritize phasing out extraction closest to people. This intuitive approach builds on the success of frontline communities in California and Colorado advocating for statewide setbacks that prioritize regulating oil and gas extraction closest to their communities. Among other virtues, this advocacy has successfully drawn the connection between the localized harms of oil and gas extraction on communities of color and low-income communities to the larger climate impacts of continued oil and gas extraction. This Article argues that phaseout policies should follow these communities’ lead and articulates several priorities for doing so: (1) stopping new extraction closest to people, (2) monitoring continued extraction closest to people, (3) plugging and reclaiming wells closest to people, and (4) matching proximity-based phaseouts with decarbonization programs. This approach to managing the decline of oil and gas extraction in the United States places such policies on the strongest footing against legal challenges while also targeting the roots of political support for extraction by reducing local dependency and supporting communities that have borne the direct impacts of fossil fuel extraction