Document Type

Article

Publication Date

2018

Abstract

The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put questions of economic power and distribution, democracy, and workplaces and neighborhoods at the center of environmental politics for many decades before the watershed era of environmental law making, 1970–77. The mystery is why this long environmental justice movement did not have more effect on the mainstream environmental law that arose in that period. The Article shows that we can better understand the omissions of environmental justice concerns by appreciating that mainstream environmental law was the last major legal product of “the great exception,” the decades of the mid-twentieth century when, unlike any other time in modern history, economic inequality was declining and robust growth was widely shared. The assumptions of that time, along with key contingent decisions by the Ford Foundation, labor unions, and other early funders produced an environmental law that, more than much of the preceding environmental politics, neglected questions of justice. To give both environmental law and environmental justice their due, we must both locate environmental law within our new historical understanding of patterns of economic inequality and recognize that environmental justice is a recovery and extension of an essential and neglected strand of politics and law.

Disciplines

Environmental Law | Law

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