TOWARD A ROLE FOR PROTEST IN ENVIRONMENTAL LAW.

• Author: Hammond, Emily
• Position: The EPA at Fifty Symposium

ABSTRACT

The story of environmental law closely coincides with that of the Environmental Protection Agency (EPA), which has doubtless made many contributions to improved governance and enhanced environmental protection. In this symposium tribute to the EPA's fiftieth anniversary, however, I invite a renewed look at the role of protest in environmental law--both as an integral part of the development of environmental law and as an enduring critique of it. This approach demands of traditional legal scholarship that it interrogate its discomfort with direct-action methods; in the environmental law arena, it asks for both a deeper theoretization of protest and a renewed commitment to principles of environmental justice. Using examples from the environmental protest traditions of central Appalachia, I explore how those traditions have shaped environmental law and how the promise of environmental law has fallen short. These examples also make plain that the narrative of civil disobedience as "outside" of the legal system in contrast to participatory activities "within" the system is a false dichotomy. Indeed, the coordinated efforts among civil disobedients, local environmental movements, and impact litigators suggests the further need to theorize and operationalize a role for protest in environmental law. Ultimately, this Article calls for such a research agenda.

CONTENTS INTRODUCTION I. Protest, Civil Disobedience, and Direct Action II. From Protest to Law and Back Again A. The Broad Form Deed and SMCRA B. Mountaintop-Removal Mining and the Continuing Role of Protest C. Citizen Science as Protest III. Toward a Research Agenda for Protest and the Environment INTRODUCTION

On the occasion of the Environmental Protection Agency's (EPA) golden anniversary, observers of both administrative and environmental law do well to consider the EPA's contributions to improved governance and enhanced environmental protection. (1) For example, in many ways the EPA has been a pioneer in regulatory innovations that incorporate public participation, both formally (2) and informally. (3) Still, the limitations of regularized means of public participation are widely recognized. (4) In this symposium contribution, (5) I offer some preliminary thoughts on civil disobedience, protest, direct action, and other forms of resistance as part of the fabric of environmental law.

This Article neared completion just prior to the declaration of the global COVID-19 pandemic, and as it goes to press, a nationwide antiracism protest movement has sounded alarms over the killing of Black people by police and our collective failure to reckon with deeply entrenched racism. The federal government, as well as some state and local governments, have met peaceful protestors with violence. (6) And although some jurisdictions have taken steps to address at least a few of the deep racial inequities embedded in law and policy, (7) there is significant long-term work to be done on both individual and societal bases. (8) This Article's focus on environmental protest may seem out-of-step with the urgency of the current context. (9) But the environmental justice critique of environmental law helps illuminate the deep-seated institutional deficiencies with which environmental protest reckons.

Salient examples of environmental protest abound. Consider the Native Americans who have among other things blocked the paths of the Dakota Access Pipeline and Keystone XL Pipeline in protest of the "bulldozing] of indigenous rights and interests." (10) Further, the climate-change crisis and the accompanying failure of meaningful action by government institutions has opened the door for urgent calls for drastic change. (11) Scientists are exhorted to undertake mass acts of civil disobedience; (12) Greta Thunberg and a host of other young people have shamed leaders for their seeming impotence; (13) individuals continue to lock down their bodies to slow the construction of natural gas pipelines (14)--the list goes on. (15) These activities draw on a strong tradition of direct action that has gone hand-in-hand with the development of environmental law, including many of the statutes that the EPA administers. (16) But given that these activities often take place outside of ordinary legal processes, how can they be reconciled with notions of environmental governance? And how can insights from these activities further the aims of environmental justice?

In this Article, I draw from a handful (17) of historical and contemporary examples of direct action in central Appalachia as a way to (1) make concrete both the overlaps and the inherent tensions among protest activities and the environmental legal system, (18) and (2) develop a research agenda that considers how direct action can enhance the missions of environmental protection and justice. (19) Part I begins with definitional matters, orienting the reader to direct action and making note of its connection to the civil-society and environmental-justice literatures. Part II uses concrete examples to illustrate the heritage of protest in the Appalachian region and its relationship to the development of environmental law. Part III outlines a research agenda to consider how protest can be better accounted for as environmental law moves to reincorporate social justice.

1. PROTEST, CIVIL DISOBEDIENCE, AND DIRECT ACTION

   Protest, which is an act expressing disapproval, may take many forms. A familiar starting place is civil disobedience, which legal philosopher John Rawls defined as a public, nonviolent, conscientious political act done contrary to the law, with the purpose of bringing about change in the law or government policies. (20) Such acts are communicative--hence the public component of the definition--in that Rawls compares them to public speech. (21) These acts are necessarily nonviolent because otherwise they would conflict with their communicative force and, indeed, undermine it. (22)

   Furthermore, civil disobedience is fundamentally committed to the legal system in several ways. First, the civil disobedient accepts the consequences of her legal violation--for example, a protestor who serves probation and completes community service as part of a sentence for trespass or interfering with others' property. (23) This attribute also demonstrates the sincerity and politically conscientious nature of the act. (24) Second, the civil disobedient's nonviolent action evinces a commitment to the rule of law by minimizing harm caused by the act. (25) Finally, one's commitment to the legal system is evinced by its ultimate purpose: to influence that system. (26)

   Many contemporary activists speak in terms of direct action rather than civil disobedience. Most generally, one may conceive of direct action as an umbrella term, including legal (27) and illegal action, violent and nonviolent action. (28) For purposes of this Article, there is little need to distinguish among the types of direct action, though clearly more is at stake--liberty and sometimes even life--for some protestors as compared to others. (29) The point here is more basic. Though persistently prevalent in many conflicts over energy projects and the environment, direct action receives little attention in the mainstream environmental-law literature. (30) Indeed, the law-violating aspect of civil disobedience is uncomfortable for many who are committed to the rule of law. (31) And some states have ratcheted up their enforcement of criminal laws in response to acts of civil disobedience. (32) Yet the philosophical literature finds moral justification for these activities; (33) and the historical, anthropological, and sociological literatures provide deep accounts of resistance. (34) I posit that we should engage with resistance as a fundamental component of a socially just civil society, letting it fill significant gaps left open by constitutional safeguards. (35)

   Moreover, environmental resistance might be understood within the framework of what Professor Jed Purdy calls the "long environmental justice movement," which he argues dates to well before the institutionalization of environmental law that took place in the 1970s. (36) Indeed, the environmental-justice critique of environmental law--which, among other things, is concerned with the distributional consequences of a legal regime that imposes disproportionate environmental harms on people of color and low-income communities (37)--takes aim at environmental law's mostly white, mostly middle- or upper-class, professional paradigm that includes national nongovernmental organizations and relies on legal mechanisms such as participation in the administrative process and advocacy in the courts. (38) Protest in environmental law shares the environmental-justice movement's long heritage of community activism; (39) and, in fact, protest persistently highlights the shortcomings of environmental law.

2. FROM PROTEST TO LAW AND BACK AGAIN

   The above definitions help outline the theory of protest and its place in law, but resistance stories vividly demonstrate the ways that such activities influence the very system being protested. In this Part, I draw from central Appalachia's rich heritage of resistance (40) to make plain the ways in which direct actions have influenced the development of law. Notably, these stories also resonate with the environmental-justice critique of environmental law--they are set within some of the nation's most impoverished counties (41)--and illuminate the ongoing role for resistance in the law's evolution. There are far too many such stories to catalog here, so I have chosen to emphasize the following: (1) surface-mining protest activities and the Surface Mining Control and Reclamation Act (SMCRA); (2) mountaintop-removal mining under the environmental laws and the ongoing role of protest; and (3) a brief mention of other contemporary resistance stories that set the stage for a broader research...