Wednesday, October 23, 2019

The GAO's New Environmental Justice Report

Last Thursday, the Government Accountability Office released a new study on federal agencies and environmental justice.  The narrow purpose of the report is to assess the extent to which federal agencies are implementing Executive Order 12898, which was issued by President Clinton in 1994 and theoretically remains in force, along with subsequent agency commitments, some made in response to prior GAO studies.

For environmental justice advocates, much of the report will paint a depressing, if unsurprising, picture.  In 2011, federal agencies participating in an environmental justice working group agreed to develop and periodically update environmental justice strategic plans, but some agencies have never developed plans, and others have stopped updating their plans.  Ideally, those plans would include ambitious goals for progress and measurable indicators for evaluating progress toward (or past) those goals, but many agency plans include no such things.  Agencies also had committed to preparing annual reports documenting their progress toward achieving environmental justice goals, and most agencies have stopped submitting those reports.  In interviews and written correspondence, some agencies—including the Department of Defense, which is involved in dozens of Superfund sites—questioned whether environmental justice is even relevant to their work.  These issues seem particularly concerning because neither Executive Order 12898 nor the subsequent individual-agency and interagency established demanding standards.  Agencies’ commitments are modest, yet even those modest commitments are mostly unachieved.

The report also documents some EJ achievements.  Perhaps most importantly, EPA has achieved one of its key environmental justice goals, which was to substantially reduce the number of people exposed to air quality that fails to attain national ambient air quality standards.  That isn’t purely an environmental justice achievement, of course; its benefits cut more broadly.  But air quality impairment has been a common problem for EJ communities, and steps toward ameliorating that problem are a big deal.  EPA also has handed out lots of grants and developed EJScreen, a widely-used tool for mapping and assessing communities’ environmental risks.  No other agency has quite this list of achievements (and one might expect more EJ work from the Environmental Protection Agency), but the report does identify steps by other agencies, as well as commitments to address some of the problems identified in the report.

All of that raises an interesting question: should we be more surprised that the federal-agency-EJ glass is mostly empty or that it is even somewhat full?  After all, while the report depicts rather spotty efforts to address environmental justice concerns, one might have anticipated much less.  Environmental justice is ultimately about using environmental regulation, which often generates well-funded and well-connected resistance, to protect people who are particularly politically disempowered.  That can be an uphill climb under any circumstances, and the climb is particularly steep at this present moment, when our nation is governed by an administration that is openly opposed to environmental protection and openly disdainful of disempowered communities.  Perhaps, then, it is a wonder that federal agencies are still doing anything for environmental justice or that Executive Order 12898 hasn’t been repealed.

The report also hints at some interesting questions about how EJ might be turned from activists’ aspiration into institutional reality.  As the report explains (and it is also part of this ongoing process), an executive order devoid of substantive mandates has become part of agency practice through largely-voluntary agency commitments—some of which were spurred by oversight from the GAO, a body whose limited leverage derives from its ability to provide information to Congress and non-binding recommendations to agencies.  In exercising that oversight, the GAO has asked agencies to define their own goals, establish benchmarks toward achieving those goals, and then measure and document their progress.  To a business school professor, that might sound perfectly sensible, but to many environmental lawyers, it may all sound quite soft.  Where are the statutes and regulations and enforcement actions that define environmental law, and in which we tend to place our faith?  But the (somewhat limited) empirical evidence I have seen doesn’t paint a black-and-white picture favoring either the hard regulatory mechanisms favored by many lawyers or the softer ones that are more fashionable in the business-academic world.  It could be that the GAO’s vision—specifically, that management strategy is key to environmental justice—reflects some wisdom, or, at least, the absence of better options.

- Dave Owen

October 23, 2019 | Permalink | Comments (0)

Thursday, October 17, 2019

Nathasha Affolder’s "Contagious Environmental Lawmaking"

I just ran across Professor Nathasha Affolder’s (University of British Columbia) recent article, Contagious Environmental Lawmaking.  This thought-provoking piece critically examines how environmental law scholarship characterizes the international diffusion of legal concepts such as environmental impact analysis.  A common method in scholarship, Affolder observes, is to note examples of the apparent proliferation of an idea across multiple legal systems and then to treat this proliferation as evidence of the merit of the idea.  Lots of legal systems have something called environmental impact analysis, the reasoning goes, so that must mean that environmental impact analysis is a beneficial legal tool.  The transnational migration of a term is thus assumed to demonstrate the replication of law, and replication is assumed to demonstrate the merit of a law.

Affolder makes a convincing case that this approach can be naïve and even biased because it strips the process of legal diffusion of its contingencies and its historical and cultural context.  Just because a term such as environmental impact analysis appears in different legal systems does not mean that it is equivalent in each system.  And even if an idea gets adopted elsewhere, its spread is not necessarily simply because it was a good idea.  The international lawmaking market is not a neutral meritocracy of ideas.  The dominant and recurring theme of Affolder’s article is, “It’s a lot more complicated than that,” and she urges environmental law scholars to take fuller account of those complications in their work. To encapsulate her critical approach, Affolder proposes the term contagious lawmaking, which she contends “creates space for dissecting the multiplicity of processes at work, of directions of travel, and of levels at which the ‘influence’ of legal ideas can be detected or imagined.”

To help illuminate some of the complications she sees as overlooked in conventional comparative environmental law scholarship, Affolder identifies five methodological traps to be avoided: 

  • Scholars embed normative claims in putatively descriptive work in ways that disguise policy agendas. Thus, a scholar may refer to a list of “best practices” as if what counts as “best” is self-evident and as if practices that are successful in one context should automatically be replicated in others. 
  • Scholars ignore the historical development of environmental law ideas, assuming that ideas develop and spread simply because they are good. Ideas may spread for a variety of reasons, not all necessarily based solely on universal merit.
  • Scholars project universality onto their objects of study, ignoring important differences among similar-sounding concepts. As an example, Affolder notes how a concept such as “rights of nature” can only be understood in the context of a particular people’s understanding of, and relationship to, nature. 
  • Scholars ignore the people who influence the spread of environmental law concepts. Individuals take actions that carry legal concepts across cultures and legal systems.  Understanding why and how those actions occurred adds important context to the migration of legal concepts.
  • Scholars pay insufficient attention to how funding affects the movement of law. People and organizations with money can push out ideas, and the ability of an idea to take hold depends on having resources to implement it.

Each of Affolder’s “traps” is a point well taken, but I think they also can be overstated and taken too far.  Sometimes stripping away context is what generates insights.  Treating every development as thoroughly embedded in its own unique historical and institutional context can obscure patterns and commonalities that may exist across developments.

Affolder’s critiques remind me of a cluster of articles written a few years ago by scholars such as Jody Freeman, Amy Wildermuth, Lincoln Davies, Joe Tomain, and I about the relationship between energy law and environmental law.  My 2015 article in that cluster, Energy-Environment Policy Alignments, argued that FERC and EPA had begun developing policies that create beneficial alignments between energy law and environmental law and these alignments offer a promising model for better managing the energy-environment relationship.  More broadly, I claimed, policy alignments provide a potentially useful model for managing relationships among other overlapping fields as well.  Around the same time, Jody Freeman published an article entitled The Uncomfortable Convergence of Energy and Environmental Law.  Her article took what she called a more “tempered” view of energy-environment alignments, noting that the institutional contexts in which agencies such as FERC operate limit their ability and willingness to adopt environmental policy objectives that are outside of their traditional focus and legal mandate.  It seems to me that Freeman took an approach closer to what Affolder recommends.  Freeman’s criticism of my article and others was well-placed; she made a convincing case that the realistic prospects of energy-environmental alignments are best understood in light of the institutions in which such alignments would have to occur.  But adding this helpful context also doesn’t negate the point that scholars such as Wildermuth, Davies, Tomain and I have made in our scholarship about the importance of opportunities to align the sometimes divergent fields of energy and environmental law.

Circling back to Affolder’s article, my take-away is that there is an important place for scholarship that contextualizes legal ideas in the circumstances in which they arise, take root, and spread.  But not all scholarship has to take a context-centered approach.  Scholarship attempts to explain things, and in doing so it often employs theoretical and analytical frameworks that necessarily simplify the world.  Simplification and focus generate insights.  To translate theory into practice, however, scholarship also should examine the experience of legal ideas as they have operated in the real world.  Affolder’s article provides a strong argument in favor of such scholarship, and valuable guidance in thinking about how to approach it (and how not to approach it).

--Todd Aagaard

October 17, 2019 | Permalink

Wednesday, October 2, 2019

2020 Detroit Mercy Law Review Symposium: Race, Class, and Environmental Justice

Call for Proposals

Deadline: Friday, October 18, 2019

The University of Detroit Mercy Law Review seeks proposals for its 104th annual Symposium, which will focus on Race, Class, and Environmental Justice and will be held Friday, March 6, 2019, in Detroit, Michigan.  Proposals, which should be approximately 250–500 words, are due no later than 5 p.m. EST on Friday, October 18, 2019.  Possible topics include, but are not limited to: the impact of water and air quality issues on marginalized people; the history of ecological inequities and the law; legal approaches to climate change and global warming; challenges arising from efforts to increase the use of renewable energy; legal and equitable issues connected with deep decarbonization projects; and any other topic related to race, class, and environmental justice.  Please include a current CV with your proposal and indicate whether the proposal is for a presentation only, or whether you also plan to submit an article for possible publication.  Preference will be given to proposals that include plans for an article, which will be due to the Law Review on Friday, March 13, 2019.  Proposals and questions should be directed to Bridget Underhill, Symposium Director, at [email protected].


October 2, 2019 | Permalink