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Abstract: This article argues that, except in California, environmental justice considerations have not received sufficient attention in climate change policy debates. It explores the environmental justice implications of emerging domestic climate change policies and provides policymakers with specific suggestions on how to integrate environmental justice concerns. The article begins by introducing the environmental justice movement and its central principles, and then explores the limited integration of environmental justice concerns in existing climate change policies. The article then clarifies existing debates about the environmental implications of greenhouse gas cap and trade programs by providing a detailed assessment of their distributional benefits and risks. The article also includes specific mechanisms by which environmental justice could be integrated into cap and trade programs, and discusses the administrative and economic efficiency ramifications of such integration. Having addressed the environmental implications of cap and trade programs, the article then turns, more broadly, to the economic implications, both negative and positive, of a variety of existing or future climate change policies, including, but not limited to, cap and trade programs. This Part notes that climate change policies could result in significant economic and technological transformations that provide unique development opportunities for disadvantaged communities. The article ends by exploring the risks and opportunities presented by alternative technologies, with a particular focus on the risks presented by ethanol production and use. Given the likelihood that climate change policies will result in pervasive economic and environmental ramifications for the nation, it is incumbent upon decisionmakers to integrate distributional considerations into emerging policies.
environmental justice, climate change, environmental law, cap and trade programs, economic development, sustainable development, biofuels
Abstract: Although the United States is not a party to the Kyoto Protocol, a multitude of alternative domestic approaches to combat climate change have emerged at all levels of government. The article takes as given that climate change is a serious environmental problem that requires a legal response. Building on conference presentations at a USF symposium in March 2007, this article evaluates the most significant existing federal and state measures, including federal voluntary measures, California's vehicle emissions standards and global warming legislation, and the Regional Greenhouse Gas Initiative. The article also addresses three litigation initiatives: Massachusetts v. EPA, Friends of the Earth v. Mosbacher, and the states' public nuisance actions against electric utilities and auto manufacturers. The article not only highlights the key features of federal, state, and litigation initiatives; it also addresses their respective roles. In responding to climate change, the nation must confront profound institutional questions about the relationship between federal and state regulation, as well as the relationship between democratic processes and the courts. In the article, I conclude that each of our legal institutions, including the federal government, the states, and the courts, has a role to play. Letting them play their respective roles increases the likelihood that our legal institutions will respond effectively to the fundamental challenge posed by global climate change.
climate change, global warming, air pollution, vehicle emissions, federalism, public nuisance, NEPA, Clean Air Act
Abstract: Policymakers and scholars alike are struggling with the federalism question: whether climate change regulation should flow from a global, national, state, or local level. This Article provides theoretical and practical justifications for a cooperative federalist approach that strives to avoid the weaknesses and build on the strengths of each level of government. It argues that federal minimum standards and programs are essential to avoid the collective action challenges faced at the state level. Nonetheless, the article details the states' critical role within a federal structure in light of the pervasive local impacts of climate change, the significant political, economic, and environmental implications of alternative regulatory approaches, the local nature of many potential climate change strategies, and the institutional peril or relying on a single level of government. I then provide specific proposals for federal legislation. I discuss federal emission reduction goals and standards, and argue that federal law generally should not preempt more stringent state standards. I then argue that, if a federal cap-and-trade program is adopted, the states should have the option of controlling in-state trades so that the states' efforts to exceed federal minimums are not undermined and to give states control over the pervasive economic and environmental consequences of trading programs. I further argue that some form of state implementation planning would prompt the states to address critical areas, like land use and transportation, that have historically been under state control, and would knit together the combination of state and federal efforts necessary to achieve the nation's goals.
environmental law, climate change, federalism, environmental justice
Abstract: One of the most important developments in environmental law over the last three decades has been the emergence of the environmental justice movement, a movement that has challenged the unequal distribution of undesirable land uses in poor and minority communities. The movement's claims for injustice are varied and interconnected - encompassing unfair treatment, unfair distribution, and the systemic history and patterns of inequality that have led to current disparities. While some have suggested that government action should address only those disparities caused by unfair treatment, Professor Kaswan argues that distributive inequalities deserve regulatory attention even if they were not caused by discriminatory treatment. Most existing studies suggest that undesirable land uses are unequally distributed based upon race and class and, consequently, that we have distributive injustice. Some authors, however, have suggested that these disparities may not be unjust: the differences in distribution may be explained by communities' differing preferences for the land uses in question. Professor Kaswan argues that this argument embodies a competing vision of distributive justice, one she calls the "community preferences model." Under this model, the critical issue is not the physically equal division of allegedly undesirable land uses, but the extent to which communities are equally satisfied with surrounding land uses. Some advocates of this model have suggested that the market in land use distribution works, that communities are equally satisfied, and that government intervention to improve distributional outcomes is therefore unnecessary and possibly counterproductive. Professor Kaswan argues that, even if one were to adopt the community preferences model of distributive justice, we nonetheless have a distributive justice problem. She reviews relevant aspects of the siting process - objective factors, political decisions, and the special role of public participation provisions - and concludes that the land use siting process does not serve to meet community preferences equally. While advocates of the community preferences model have argued that post-siting housing market dynamics could rectify disparities in preference satisfaction, since those who did not like new land uses could move away from them and those who do like land uses could move toward them, Professor Kaswan argues that the housing market is neither fluid nor equitable enough to overcome the disparities created in the land use siting process. Thus, she argues that the "market" does not achieve equity, and that government efforts to address distributive injustice are appropriate regardless of one's model of distributive justice.
distributive justice, environmental justice, neoclassical economics, land use, facility siting
Abstract: In this article, Professor Kaswan considers the sometimes-tense intersection between environmentalism and the environmental justice movement. Professor Kaswan first establishes a framework for evaluating the newly-emerging environmental justice movement, identifying its primary distributive and political justice strands. Professor Kaswan then notes the skeptical views of environmentalism presented in the environmental justice literature. She explains the underlying tension by analyzing the roots of the environmental movement and its early distance from the civil rights movement (from which the environmental justice movement arose), as well as the ways in which environmental law may inadvertently have exacerbated environmental problems for poor and minority communities. Seeking to bridge the gap between environmental law and the struggle for justice, Professor Kaswan then explores the mechanisms by which environmental laws could serve environmental justice. Environmental laws can not only stop unwanted projects, they add transparency to facility siting processes and thereby reveal decisionmaking irrationalities that could be traceable to discrimination. For example, where an entity sites a facility in violation of substantive environmental criteria, it suggests that socio-political factors may be influencing the decision. In addition, many environmental laws provide a tool for generating information about the selected site and alternative sites that an affected community would not otherwise be able to obtain. The information can provide the community a basis for questioning the rationality, and hence the motives, of the siting decision. Environmental laws can thereby play a critical rule in a community's pursuit of political justice.
environmental movement, environmental justice movement, environmental law, justice, environmental justice, environmental racism
Abstract: In this article, Professor Kaswan argues that hoped-for greenhouse gas reductions cannot be achieved without reducing consumption. Given their control over land use and buildings, cities can play a key role in reducing consumption. She argues that, while existing federal proposals for a market-based approach could indirectly create incentives that would reduce emissions from transportation and buildings, the invisible hand of the market will not suffice. Nor can the federal government succeed alone. Local and regional governments could play a key practical and institutional role, and many have already initiated greenhouse gas reduction efforts. Local governments are, however, unlikely to take sufficient action on their own initiative due to collective action constraints, the socioeconomic complexities driving existing land use patterns, and federal and state disincentives to smarter growth. Professor Kaswan argues for a vertically integrated approach to overcome impediments to local action. She proposes that the federal government delegate emission reduction responsibilities to the states who would in turn delegate responsibility to regional or local governments. She also proposes that federal law require the integration of broader regional equity goals to address the complex socioeconomic factors that are inextricably implicated in land use decisions.
climate change, local government, greenhouse gas reduction, land use
Abstract: A cap-and-trade program is likely to be a centerpiece of federal climate change legislation. The presence of a national market does not, however, render irrelevant the states’ vital interest in the goals and operation of a national trading program. This Article addresses a first critical question about a state’s role in a federal system: whether federal legislation should allow states to be more stringent than the federal government and to achieve that stringency through controls on stationary sources. This Article reviews the compelling justifications for allowing states to be more stringent. It then assesses particular mechanisms for achieving state stringency and evaluates their potential negative consequences, particularly their impact on the national allowance market. The analysis reveals that differing mechanisms for achieving stringency are likely to have differing impacts. The Article concludes that allowing states to achieve greater stringency is justified notwithstanding certain negative consequences, but that the degree of impact should be a relevant factor in selecting among possible mechanisms. The Article also analyzes the decentralization models that federal legislation would have to adopt in order to enable states to effectively implement more stringent emissions caps.
environmental law, climate change, federalism, states’ rights, global warming, cap-and-trade
Abstract: In the last thirty years, two opposing trends have emerged in environmental policy: environmental justice and market-based mechanisms. They present fundamental tensions. The environmental justice movement’s distributional goals conflict with market programs’ focus on cost-effectively achieving aggregate goals, without regard to distribution. And the environmental justice movement’s participatory goals conflict with market programs’ focus on industry autonomy and privatized decisionmaking. The tension between environmental justice and markets is arising in the context of cap-and-trade programs for greenhouse gases (GHGs). While GHGs do not impose localized harms, GHG trading policies nonetheless raise distributional issues because GHG gas emissions are inevitably accompanied by co-pollutants that do.
After exploring the tensions between environmental justice and market goals, this book chapter articulates the importance of designing policies that attempt to achieve both justice and efficiency. Drawing upon John Rawls’ Theory of Justice, it argues that inequalities in the pursuit of utilitarian goals, like achieving aggregate reductions efficiently, are not justified unless they serve the least advantaged. In addition, addressing the co-pollutant consequences of GHG trading policies could better serve overall social welfare than a narrow focus on GHG reductions alone. Incorporating arguments first articulated in Environmental Justice and Domestic Climate Change Policy, 38 ENVIRONMENTAL LAW REPORTER, NEWS & ANALYSIS 10287 (2008), http://ssrn.com/abstract=1077675, the chapter then proposes several practical design mechanisms that could incorporate greater equity into cap-and-trade programs. Exploring the tension between equity and efficiency, the article addresses the potential economic and administrative efficiency consequences associated with each mechanism to achieve equity.
environmental law, environmental justice, market-based mechanisms, global warming, cap-and-trade
Abstract: In this article, Professor Kaswan continues to address the relationship between environmental laws and civil rights claims in the context of siting unwanted facilities. While an earlier article addressed the relationship between environmental laws and political debates in siting disputes, Environmental Justice: Bridging the Gap Between Environmental Laws and "Justice," 47 Am. U. L. Rev. 221 (1997), this article addresses the relationship between environmental laws and constitutional claims brought under the Equal Protection Clause. The article first addresses equal protection case law, analyzing, in particular, the cases that have challenged environmental siting decisions. While conceding that proving discriminatory intent presents a significant legal hurdle, Professor Kaswan argues that, under certain circumstances, environmental laws can help plaintiffs meet the Arlington Heights factors for proving circumstantial evidence of discriminatory intent. Data gathered under existing environmental laws can help plaintiffs demonstrate that the siting decision will have a disparate impact, they create a public record of prior siting decisions that can provide evidence of a past pattern of discriminatory decisions, they increase the transparency of the decision at issue, making it easier to identify potential discrimination; and they establish substantive and procedural requirements, the violation of which may be evidence of discrimination. The article demonstrates that environmental laws can serve not only instrumental environmental goals; they can also assist in the pursuit of political justice.
Equal Protection Clause, environmental justice movement, environmental justice, environmental law
Abstract: This short symposium essay argues that the collateral environmental and economic justice benefits of greening the grid provide support for transformative climate policies that speed the development of fossil fuel alternatives. More broadly, policymakers should integrate climate justice considerations into the design of any new energy infrastructure in order to maximize the benefits and minimize the risks of the profound transition ahead. While efforts to integrate climate justice could complicate climate and energy legislation, they would, on balance, further rather than hinder the political prospects for greening the grid. The essay concludes by encouraging an inclusive and participatory process for developing green energy policy.
energy law, energy policy, alternative energy, green energy, environmental justice, climate justice, climate change, global warming
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