Environmental Justice in the Courts

Abstract

The environmental justice movement recognizes the importance of social equity when assessing environmental burdens and benefits (Bullard 1990;Gould, Pellow, and Schnaiberg 2008). As a result, environmental justice concerns are diverse and focus on a variety of issues.As Bunyan Bryant (1995, 6) makes clear, environmental justice "refers to those cultural norms and values, rules, regulations, behaviors, policies, and decisions to support sustainable communities where people can interact with confidence that the environment is safe, nurturing, and productive [and is] is supported by decent paying safe jobs, quality school and recreation; decent housing and adequate health care; democratic decision-making and personal empowerment."The focus of this chapter is on environmental justice in the courts, which makes up only one small portion of the movement's overall concerns and activities. More specifically, this chapter emphasizes corrective justice, or the role of contemporary U.S. courts in punishing environmental offenders and/or reversing environmental injustices (Weinrib 2012). Prior to examining the way courts function with respect to environmental justice we briefly examine major federal environmental justice policies that attempt to direct environmental enforcement.We focus on federal environmental justice policy because this is the level of governance at which a significant amount of court activity has occurred. We draw upon that policy to examine whether federal agencies have pursued environmental justice goals set out in those policies in the courts.

Environmental Justice: Where It Has Been, and Where It Might Be Going

“…Similar problems have stymied a similar strategy: invocation of the equal protection clause (the Fourteenth Amendment). Several EJ cases in federal courts have found that plaintiffs inadequately proved “discriminatory intent,” not just disparate environmental impact ( 50 , 55 ).…”

“…With NEPA, EJ activists have sought to compel agencies to incorporate EJ principles in decision-making. They have been buttressed by Executive Order 12898 (in 1994) and the mandates it theoretically imposes on federal agencies ( 50 , 121 ). Scholars studying these efforts report mixed results.…”