ENVIRONMENTAL INJUSTICE AND THE LIMITS OF POSSIBILITIES FOR ENVIRONMENTAL LAW.

• Author: Krakoff, Sarah

1. INTRODUCTION 230 II. ARE THINGS GETTING BETTER OR WORSE? 233 A. Things Are Getting Better! 233 B. Things Are Getting Worse (on the Path to Hothouse Earth?) 235 C. "Things" Do Not Just Get Better or Worse: Environment, Equality, and Political Economy 238 III. ENVIRONMENT AND INEQUALITY IN PLACE 240 A. Environmentally Hazardous Housing in New York City. 240 B. Environmental Degradation and Economic (Under) Development on the Navajo Nation 243 IV. CONCLUSION: LEGAL TOOLS CAN CREATE SPACE FOR CHANGE 245 I. INTRODUCTION

   Can we use law to make the planet a more just and equitable place for human and non-human communities? Can we, in other words, deploy law in the effort to tackle global environmental problems and widespread environmental injustice? The short answer for impatient readers is yes, but it will take more than environmental law, and more than law, and that still might not be enough. This Essay, adapted from a lecture at Lewis & Clark Law School, will discuss the connections between a political economy that produced progress for many and yet simultaneously increased inequality and caused widespread and enduring environmental harm. It will examine those trends at the planetary scale, but also in two local places.

   Starting at the planetary level, climate change, caused by human emissions of carbon dioxide and other greenhouse gasses, has already resulted in increases in global average surface temperatures that have had effects all over the world. Many are already severe, such as the bleaching of two-thirds of the coral in the Great Barrier Reef, the flooding and destruction of coastal areas, the prolonged cycles of drought throughout the world, and the loss of glaciers and sea ice. (1) Many more changes are likely to come, and the latest report by the Intergovernmental Panel on Climate Change tells us that we have less time than we thought to avert dangerous conditions. (2) And that's not all. While we have been turning up the heat on planet Earth, wealth inequality in developed countries has increased, and despite some progress on global poverty, there are still billions of people living below basic human rights standards for health, education, and welfare. (3)

   Further, environmental harms, just like harms of all sorts, fall hardest on the poor. As climate change worsens, the impacts on the poor will become increasingly disproportionate. (4) Finally, in the United States and throughout the world, the structures of unequal resource allocation (in other words, the doling out of environmental privileges and environmental harms) are shot through with the structures of racism and other forms of discrimination. Putting these together, if current trends continue, negative impacts from climate change will be borne disproportionately by the poor, by people of color, and other groups, such as indigenous peoples, who have been subject to historic discrimination, and existing inequality will worsen or become entrenched. (5) By now some readers might want to throw up their hands in despair, or opt for pointless hedonism before the end-times. The hope, however, is that at least some readers see this as a call to reorient our legal, political, and economic systems toward a more just, equitable, and sustainable world.

   To zero in on these issues, we will visit two places. Those two places are New York City and the four-corners area of the western United States. More specifically, they are New York City's public housing projects, where tenants have sued the New York City Housing Authority repeatedly about environmentally hazardous living conditions, and the Navajo Nation, where more than one-third of all households lack electricity, 30% do not have running water, and strip coal mines have scarred the land and depleted the aquifers. (6) The questions we will explore will be intensely local, but also intersect with the planetary scale. We will look at how environmental degradation and discrimination affect particular people and places and are nested within larger structures that perpetuate global environmental harms.

   This Essay will interrogate, in other words, how economic, political, and legal structures have failed to address global environmental problems and also trap poor people in environmentally hazardous and economically oppressed communities. In the context of the two places we will visit, we will ask two questions. First, how is it that in one of the wealthiest cities in one of the wealthiest countries in the world, children in public housing suffer from lead poisoning, families face days without heat or hot water, and thousands live with infestations of mold and pests? Second, how is it that on the Navajo Nation, which produced vast amounts of electricity to support the growth of Phoenix, Los Angeles, and Las Vegas, there are thousands of households without running water or electricity and the community is economically dependent on a coal mine and coal fired power plant that polluted the air and water but provided no electricity to local homes? And how is it that several decades into a robust environmental regulatory state, law has come up short in addressing these issues?

   We will then turn to potential responses. The "what can we do" part of the Essay. The answers will not be naively optimistic. At the same time, this Essay will not indulge in the self-serving pessimism that gives license for doing nothing, with the excuse that because we have not done enough to date, nothing we do now will matter. (Philosopher Stephen Gardner has diagnosed this as climate change-specific moral corruption, which stems from our failure to do anything significant about the most important moral challenge of our time. (7)) Instead, it will suggest there are many legal tools that can and should be deployed to make the planet a more just, sustainable, and equitable place. Some of these tools fall neatly in the realm of laws and policies directly addressing greenhouse gas emissions and climate change impacts. But some fall outside of what we think of as environmental law, and others will not sound like law at all. To protect the most vulnerable communities, a recommitment to public investment and public provision of services should be paramount. The tools of anti-poverty law, anti-discrimination, and environmental law can be deployed toward these ends. But importantly, those with the training, privilege, and skills to bring legal tactics to bear should be aware of their limitations. Legal reforms depend on openings created by activism. Lawyers can and should be ready before and after those openings, but legal reforms can only go as far as the political economy in which they are embedded.

   This Essay will proceed as follows. We will start at the planetary scale and ask a preliminary question. How are we doing as a planet? Are things getting better, or are things getting worse? Despite descriptions in the first paragraphs about climate change, poverty, and inequality, maybe things will get better, as they seem to have done according to many indicators over the past several centuries. We start here even though the point is that the question is a red herring. "Are things getting better or worse?" This is not the right question, even though the planetary scale itself matters tremendously, and trends about the planet's ability to support all of our lives certainly matter. But what we decide to do, and what we can do with legal tools, depend solely on our values about the planet and its inhabitants rather than any determinable conclusion about progress or its opposite.

   Next, we will scale down, and look at the questions in the places mentioned above, New York City Public Housing, and the western side of the Navajo Nation. In both of these places, climate change and other environmental threats intersect with poverty and discrimination. At the same time, these places provide clues about tactics and legal tools that can be deployed to combat environmental and social injustice. These tools can achieve justice for some and can also result in a certain amount of ameliorative environmental improvement. To achieve more, however, they will have to contribute to a broader political movement that displaces our growth-dependent and profit-driven economic system with one that integrates the economy into the planet's boundaries while simultaneously ensuring justice and equality for its human inhabitants. The Essay concludes by suggesting that environmental law can play a role in instigating this broader movement, but that it will take much more than law reform to see it through.

2. ARE THINGS GETTING BETTER OR WORSE?

   We will start with the highest scale at which problems of environment and justice can be considered--the planetary scale. How are we doing as a planet? Are things getting better or worse? This is a question that is difficult to answer. Or, alternatively, it is easy to answer, but in ways that are wholly inconsistent.

   1. Things Are Getting Better!

      Harvard Psychology Professor Stephen Pinker's answer is a resoundingly positive one: things are getting better! In Enlightenment Now: The Case for Reason, Science, Humanism and Progress and other works, Pinker has argued that the world has gotten less violent, richer, safer, and healthier across the centuries, and particularly since the rise of Enlightenment values in the seventeenth and eighteenth centuries. (8) The heart of Pinker's analysis is a massive data crunch. Enlightenment Now: The Case for Reason, Science, Humanism and Progress has seventy-five graphs sprinkled across its 576 pages, and almost all are variations on the theme of improvement over time. Among the things that Pinker documents are life expectancy, child mortality, maternal mortality, infectious diseases, calorie intake, food availability, wealth, poverty, natural disasters, deaths, deaths by lightning, human rights, state executions, racism, sexism, homophobia, hate crimes, violence against women, child labor...