Donald Trump will challenge environmental law in new ways, but there is another challenge to modern environmentalism that has come from within the movement, or from nearby it. Environmental justice scholars and advocates and have made three big criticisms of what they call mainstream environmental law:. This criticism comes from the grassroots fights that produced the environmental-justice movement: fights about decisions to place garbage dumps, toxic waste sites, incinerators, and power plants in neighborhoods where disproportionately poor and non-white people lived.
The environmental statutes of the s accomplish many things, but they did not prohibit these disproportionate impacts.
Second, environmental justice critics challenge the mainstream environmental idea of what environmental problems are in the first place. It creates a movement of professionals and experts: lawyers, economists, and ecologists who have limited interaction with, and do relatively little to empower, the people who live with the most severe environmental problems.
These criticisms have a historical and institutional context. When environmental justice scholars and activists take aim at what they call mainstream environmental law, they are addressing the statutes, agencies, and professional and advocacy organizations that were built into their more or less current form in the s and early s. The environmental-justice criticisms are very important, but they often forget that the mainstream environmentalism whose narrowness they criticize was a recent development, and maybe one that could have turned out very differently.
In this movement, for more than a century, activists and scholars have been engaging the themes of fairness, inequality, and political and economic power in the human environment. What was this movement? Here are some key examples. The Wilderness Act has protected more than million acres of public land for hiking, camping, and solitude. It was a great victory for a long political drive to preserve public land that went back to the first national park, Yellowstone, which was created in She helped to create a widespread ecological consciousness, and also to connect that consciousness with a sense of fear and crisis that helped to spur the s anti-pollution statutes.
But her great book, which followed pesticides through almost their whole cycle of destruction, ignored the mainly Latino farm workers of California and Florida, who were directly exposed to pesticides in their work the fields. They were implicitly white and Anglo.
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They were not workers. So Carson, like the Wilderness Movement, can seem to prove that the narrowness as well as the power of mainstream environmentalism are there at the beginning. But Silent Spring and the Wilderness Act were late chapters in earlier movements that made them possible. Those precursors were at the heart of the long environmental-justice movement at work.
The movement for wilderness was centered on the Wilderness Society, which was founded in A typical founder was Benton MacKaye, a planner and interdisciplinary intellectual who is also credited with the idea behind the Appalachian Trail. He saw the struggles of factory workers and wilderness advocates as two parts of a movement with very large goals: to make the whole human environment, from the workplace to the untouched woods, welcoming and stimulating, a good place to be alive.
He thought this required extensive and intensive public planning of cities, transport networks, and regions. For him, wilderness was one essential note in a larger composition of landscapes and living-places. You could draw similar portraits of the broad concerns of other wilderness activists. He believed that mental and spiritual freedom required the chance to escape to a place radically separate from everyday life, but there was nothing escapist in his politics.
The Wilderness movement that Marshall and MacKaye built was intensely concerned with the whole human environment, the condition of factory workers and people living in cities, and the role of the state in the economy and social life. And what about Carson? He was working in a tradition of industrial toxicology that was pioneered a generation earlier by Alice Hamilton, the first woman faculty member at Harvard, a public-health scholar who went into factories and worked with workers to understand what lead, phosphorous, and other chemicals were doing to their bodies.
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Why did these broader concerns not come into the environmentalism that took shape in the burst of statutes and institution-building in the s? It is that they thought they were addressing them. It includes the shape of the communities in which he lives: his home, his schools, his places of work. The environmental statutes were passed in a world where, from the point of view of their architects, they were environmental justice statutes.
But that world was disappearing as soon as the new environmental laws were written. They were written in a time that was more economically equal than the US had ever been, and they believed that trend was going to continue, and that therefore economic inequality was a problem that had been solved. We now know, thanks to the work of economist Thomas Piketty and others, that they were living at the end of an anomalous period of widely shared growth that lasted across the North Atlantic between the end of World War Two and the beginning of the s.
Inequality was about to reassert itself, and it has been growing more or less ever since. Leaving out distribution was a mistake that was much easier to make if you believed that the country was steadily getting more equal.
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The more recent environmental-justice movement arose in response to the fact that environmental harms are distributed along very familiar lines of race and poverty. Those lines were expected to become less important in the years ahead. Legislators like Muskie also said that they expected the environmental laws to be supported by other reform legislation to overcome poverty and isolation, foster public health, and make workplaces safer and communities more livable. Instead, the s brought the return of inequality and the end of political support for bold social reforms. Then it got worse. The Supreme Court removed an essential protection against disparate environmental impacts in the form of constitutional Equal Protection challenges.
Between and , after the major environmental statutes were largely written, the Court adopted the current constitutional standard, which requires plaintiffs claiming they have been treated unequally to show that the government action they object to was affirmatively motivated by discriminatory purpose. So unequal harms that would once have been open to constitutional challenge are now legally clear unless they violate environmental statutes—which were not written with this kind of inequality in mind.
This, too, is not a perennial feature of environmental law, but developed in the s because of specific institutional decisions.
A key part of the story is that the Ford Foundation made critical investments to shape the new groups that helped to make the field of environmental law: the Environmental Law Institute, the Natural Resources Defense Council, the Environmental Defense Fund, and others. The ideal was that, if you could just get these marginalized voices their day in court, in front of an impartial decision-maker, you could ensure that their interests were respected in the decision process.
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In this respect, the institutions of environmental law were shaped by a conception of the legal profession that Ford was also helping to spread at the same time through law-school clinics, ABA pro-bono guidelines, and poverty-law services. The reformist goals of legal liberalism could be quite robust, but as a model of social change, it had some defining limitations.
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It was elite-driven and relied on expertise. And, in the end, it tied its reformist goals to the courts—at the same time that judges were retreating from their role in the s as drivers of structural change.
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These institutions helped to make environmentalism intensely a movement of lawyers and experts, funded by middle-class mass-membership groups and wealthy donors, and not driven by large-scale mobilization or engagement. It took much of the fire out of a movement that had begun, in Earth Day , with the largest mass mobilization in American history.
In the s, as in the s, there were versions of environmentalism that were less expert-driven and more confrontational than the versions that won out. A notable feature of the text is an examination of the difficulties inherent in managing global environmental problems. Exploring recent efforts toward global environmental governance in the face of competing economic demands, the final section considers the ways in which a system of governance might compensate for the lack of effective international regulatory institutions.
Environmental Policy and Politics. A Primer on Environmental Protection. The Environmental Policy Subsystem. The Evolution of Regulatory Design and Reform. Regulatory Design and Performance. Regulatory Reform or Reversal. Reinventing Regulation: Flexibility in an Iron Cage. Voluntarism and the End of Reform. The Emerging System of Green Governance.