Environmental law, environmental justice, civil rights law, environmental paradigm, environmental racism
As one of the defining issues in environmental regulation over the past decade, the environmental justice movement has sought to bring civil rights and broader social justice issues to the forefront of environmental protection. The movement’s challenge to traditional environmental regulation has distinguished itself because it has come from another group of political liberals rather than conservatives. Its goals remain largely unrealized, however, even though concerns about race and distributional equity in environmental protection are unlikely to go away. As explanations for this lack of success, scholars have pointed to specific legal doctrines as well as larger issues of lack of political power. Unfortunately, such accounts ignore the genuine concern and sincere efforts of many environmentalists and regulators in regard to these issues and the structural obstacles impeding attempts to change the environmental regulatory system.
This essay seeks to provide a better understanding of these difficulties by examining the paradigms that civil rights law and environmental law have been based upon. A close analysis of Brown v. Board of Education, the foundational model for modern civil rights law, and the conceptions of environmental degradation put forth by Garrett Hardin’s “Tragedy of the Commons” and Rachel Carson’s “Silent Spring” illustrates the contrasting structures, methodologies, and value premises of civil rights and environmental law. They provide important insights into the debate about the environmental justice movement and the difficulties that environmental regulators have encountered in addressing distributional equity and fairness concerns much more broadly. Efforts by environmental regulators to address the concerns of the environmental justice movement are unlikely to succeed without measures addressing these deeper-lying tensions.
(2002) 26 Harvard Environmental Law Review 1