Environmental Law Prof Blog

The Tragedy of Living in the Anthropocene

The possibilities for a human life in the Anthropocene are well beyond what prior eras of human history could have ever imagined. We can provide clean drinking water to millions of people, on demand. We can cure (most) bacterial infections. We have eradicated deadly and harmful diseases through the development of vaccines. We can treat many chronic illnesses, saving some from early death and providing a life worth living to many.

            We have heat, air conditioning, refrigerators, stoves, and ovens. We have washers and dryers, eliminating the time-consuming requirement of washing things by hand. We live in modern housing, which protects us from incessant natural threats, such as insects and other predators.

            We can travel thousands of miles in the span of a few hours, bridging the chasm that geographic distance puts between individuals. We can drive to remote and wild places in the world, chasing new adventures. We can develop new hobbies and find new friends because we are no longer captive to a life confined to a few-mile radius from our homes.

            We can pursue an entire course of study from our bedrooms. We can figure out how to fix our stuff by watching videos on the internet. We have real-time navigation in the palm of our hands.

            The Anthropocene has made available the possibility of the good life to so many people, in both relative and absolute terms. During the Anthropocene, we have eliminated so many natural challenges to the survival of the human organism that what a person can learn and do, and who they can be is effectively limitless. There is not enough time in a single human life to pursue all the ends worth pursuing made available in the Anthropocene.

            Yet, living through the Anthropocene reveals that the creation of these new ends as part of the good life was pursued at the cost of sharing participation in the good life with others. There are approximately 770 million people globally that lack access to electricity. Another 2 billion people lack access to clean drinking water. More than half of a million people die annually from malaria, a treatable, parasitic disease.

            Many poor countries are already and will continue to bear a disproportionate burden of climate change impacts, while receiving few of its benefits. There are countries at risk of disappearing entirely as a result of sea level rise.

            The Anthropocene, the possibility of a good life with boundless ends worth pursuing, was not only built unjustly, on the basis of denying others that same possibility, it was also built on borrowed time. Natural disasters do not discriminate. The Pacific Northwest heatwave of 2021 killed hundreds. Heatwaves in France have killed tens of thousands. Wildfires kill indiscriminately and expose millions to unhealthy air quality. Major hurricanes can get to be so strong that we might need to revise our hurricane rating system to recognize Category 6 storms.

            We are likely at an inflection point in the endless creation of new ends. For all the joy and excitement that a privileged life in the Anthropocene rightfully brings, there should be significant regret that the way this life was made excluded so many and will prevent it from enduring into future generations.

            This inflection point was not inevitable. Man is not required to pursue any end, not even her natural ends. Our capacity for practical reason allows us to decide whether and how to pursue an end. Choosing to permit a reckless pursuit of self-interest at the cost of others, both contemporary and future, is (and was) a choice. To think that we could only get here through a proprietarian profit motive was (and continues to be) mankind’s fatal flaw. Endorsement of the values that got us here as the means of avoiding this inflection point is (and will be) history’s greatest bluff.

--Amber Polk

Governing for the Good Life

            When contemplating the “good life” in connection with planetary boundaries, one might presume that a group of law professors would think BIG – something along the lines of how to save the world by developing international policies that reduce consumption and change our collective lives for the better. Yet, the discussion quickly shifted to individual notions of the good life and local consumption patterns. Is this inclination because we are inherently individualists who happen to live in a global society or do we simply believe that effective change begins at home?

            When we do think BIG, we praise the Intergovernmental Panel on Climate Change for considering climate impacts on a global scale and champion the United Nations for gathering the Conference of Parties annually to try and tackle the thorniest of issues. But how effective are these insights in the absence of legitimate government buy-in and enforcement mechanisms? During a final group discussion, someone posed the question “Can law lead?” The limitations of the United Nations might suggest that it cannot, particularly not at a global scale. Even when scaling down to a national level, governing for the good life seems fraught.

            Will the United States, or any country for that matter, rise to the occasion and govern for the good life, however it may be defined? Maybe the ethos of the good life is prioritizing inter- and intragenerational justice, managing transitions equitably, distributing benefits and burdens such that cycles of harm are not perpetuated, and establishing resilience as a tenet for communities and ecosystems. Maybe governing for the good life starts small, establishing a sense of collectivism by exploring individual perspectives about the goods and resources we consume and why we consume them. Maybe it encourages thoughtful engagement with principles of sustainability from both an educational and practical perspective. If so, then perhaps incorporating these quintessential elements at a community level can expand broadly to states, regions, and nations. From this place, climate challenges can be managed globally with dynamism and collaboration.

            This sounds like a lofty, and unlikely goal. But, even if the good life as I’ve described it is not a likely outcome, should we forego the possibility of governing in a way that at least promotes a better life for the collective? Of course not.

As with any complex law or policy, priorities can be reassessed in ways that allow for incremental changes. This may be perceived as ineffective or insufficient given the intensity of the climate crisis and the calls for urgent action. If left unaddressed, the dichotomy between urgency and equity may result in a better life for particular people in particular places while leaving those who are under-resourced the least protected.

            Finding consensus is at the crux of governing for the good life. Yet, building consensus in a local community, not to mention in a country as vast and diverse as the United States, is a daunting task especially in the current political climate. Scholars and other experts have suggested incorporating new voices (in addition to scientists, environmentalists, and liberal politicians) and framing issues around economic development or disaster resilience as a means of building consensus around environmental policies.

Even when providing guidance to its international partners, the Environmental Protection Agency (EPA) identified public participation as critical to environmental governance. In July 2023, EPA updated its public participation guide’s toolkit on consensus building and emphasized the need to build trust in order to reach agreements. Specifically, the Tools for Consensus Building and Agreement Seeking prioritizes small group meetings ranging from ten to a few hundred people. The groups vary in size depending upon how contentious a particular decision may be. These public sessions create opportunities for open and honest dialogue and knowledge sharing, which in turn promotes an informed electorate that shapes the values of its government.

Law alone cannot lead. To reconcile the intricacies of the good life with the need for expedient climate action, small changes and shifts in perspective have to be part of the governance strategy. Transitioning toward renewable energy sources, sustainable agriculture, and resilient development will require new governance priorities. Making big changes often starts small. Change requires consensus. Consensus takes time. 

            The impending climate crisis may dictate an expedited timeline, but it does not guarantee an expedited change in human nature. In the United States, a shift from individualism to collectivism may be warranted if we are to define the good life to include the current and future generations and govern in a way that meets their needs. In the meantime, small steps can be taken on a local level to shift us towards a life that is good.

--Danielle Stokes

Reflections on Beauty in the Anthropocene

Finding Beauty in the Anthropocene

What does it mean to live the good life in the Anthropocene? There is something very personal about this particular topic, something that rips one from the tender comforting hold of objectivity. This question naturally prompts one to self-reflection. This question is not just about the good life. It intrinsically asks, “The good life for who?” Normally, when posed the question of “who?”, my mind begins thinking in terms of populations. This time, however, I found my thinking repeatedly orienting towards a population of one: me.

Yes, the person who unflinchingly crosses out every “I”, “me”, and oh “my" has found herself speaking as, well, myself. After all, isn't that what the Anthropocene is all about, us, humans? It is the result of a world ruled by humans for humans. A world centered around human comfort and human needs. We consume. We develop unabashedly. What is life if not growth? And what is growth without consumption? It doesn't take much deep thought to realize that where there is consumption there is also waste—ugly, hideous, destructive waste. Nevertheless, there is beauty in the Anthropocene. Yes, while the Anthropocene is marked by the devastation of the Earth and the proliferation of a toxic environment, the Anthropocene is also beautiful.

If we want people to change their behavior to protect the environment and their health, we need to see beyond the ugliness and destruction. We also need to see the beauty that lies within the Anthropocene. This beauty will look different to everyone depending on their values, but it is an effort worth taking if we want to achieve real change.

Painting in the Sky with Pollution

"Pollution is beautiful," my friend said to me as we sat together sharing a locally sourced organic meal. My friend worked at a small airport, and he was describing the barrage of air contaminants he observed almost daily at his place of employment.  I watched as he sat there for a moment completely enraptured by the image unfurling before his mind's eye, an image so vivid that its very mentioning infected my vision. I was transfixed. These were the same pollutants we knew to be toxic, unhealthy. However, we sat there in silent acknowledgment that the visual signs of their poison—the unnatural mix of colors dancing, flowing, intermixing before a retreating sun—were beautiful. We agreed to this despite knowing that they represented the cost of health and life, a cost that was inequitably distributed among the beings inhabiting this planet. Just by looking into my friend's eyes, I understood that it was a beauty that despite his near daily observance of it never grew old and never tired. Its vitality never waned.

Suddenly, I found my awe twisting and mutating into horror. The once captivating image slowly morphed from a nebula of color to a vacuous all-consuming cloud. Its beauty, its vitality, was based on the consumption of our vitality, our health, and our life.  I suddenly realized that I was not merely vicariously experiencing beauty through my friend's eyes, but also—death.

Confessions of a Middle-Aged Millennial on the Road to Utter Fabulousness

I have decided that 40 will be the year of me. Finally, I am prioritizing self-care and pampering myself. As a young mother, I never gave myself time for such things. There was always something that I foolishly prioritized over myself. My well-being somehow always seemed to take a back seat to my son and career, but not anymore. Midlife is going to be about me and me with a little more me. The first thing on my list of utter fabulousness is to tend to my appearance. That’s right.

No more secondhand clothing.

Yes, despite the fashion industry’s abysmal impacts on the environment and health.

And I am booking my very first mani-pedi.

Yes, also, despite nail salons’ negative impacts on the environment and health.

The hair will be done.

Now, this is where I can be both green and fabulous.

 

I have not used chemical straighteners for the past 20 years, and I have no intention of doing so now. I decided this even before the National Institutes of Health study indicated that there is an increased risk of uterine cancer associated with chemical straighteners and the now pending lawsuits against chemical hair straightening companies. I chose the difficult road of going natural.

This time around, I decided to get extensions added to my hair. This was the first challenge to my commitment to green hair fabulousness. As I walked into the beauty supply store, I saw a small section of non-toxic braiding hair. I also noticed that this small selection of hair was bone straight. It looked nothing like the hair growing from my head. Finding a texture similar to my hair led me to modacrylic fiber Kanekalon hair, a product composed of fibers that are toxic to human beings.

I also needed other supplies for maintaining my hair. I picked up a shower cap with an image of a black woman on it, but, when I flipped it over, I saw a California Proposition 65 warning label on the back. I then inspected a shower bonnet with the image of a white woman on the front and noticed no such label. I purchased the product with the white woman on the front. I then used my phone to scan product barcodes to identify Black hair products that I would want to avoid because of toxic ingredients. Scan after scan revealed the same result, “That product isn’t in our database yet….”

Finally, I arrived at my refuge, the beauty salon. Getting my hair done meant spending my entire day at the salon. It was to be a place of peace where a Black woman could find community. However, my peace was quickly disturbed by the sound of a curious visitor. I opened my eyes to see an inquisitive white woman standing over me. I now knew what all those poor animals felt like at the zoo, objectified and examined. The temptation was too strong to observe a Black woman in her natural environment. My stylist later informed me that our visitor had tried to reach out and touch my hair while my head was down. Thankfully, my stylist stopped her. I guess she had confused the salon with a petting zoo.

I observed her eyes darting back and forth nervously as she tried her best not to look uncomfortable surrounded by Black bodies. Of course, we had not surrounded her. It was she who chose to step into the middle of a Black hair salon. Nevertheless, she persisted. She struggled to get her questions and comments out until she got to the one she really meant to say. “Do you do—um—normal hair,” clumsily stumbled out of her mouth.

My mouth fell open. I heard a gasp from my stylist standing behind me and the indignant exclamation of the stylist next to me. Our visitor’s, or rather intruder’s, reaction was to desperately explain that THAT was not what she meant, but I think we all knew what she meant.

Despite all my knowledge, I still struggle with the idea that my natural hair may not be considered “professional” enough. All too often “professional” is code for “white” or “Eurocentric.” Even without hair extensions of chemical hair straighteners, the road is difficult for Black women and our hair. The attitude that our natural hair is somehow unnatural still prevails.

Across the United States, there are efforts to pass legislation known as the CROWN Act (Creating a Respectful and Open World for Natural Hair Act) to prohibit race-based hair discrimination. However, a law is only as good as its enforcement, and it remains to be seen how much enforcement will happen. One Texas high school celebrated the passage of Texas’s CROWN Act by suspending one of its students for wearing dreadlocks. Apparently, the student’s "outward expression of his Black identity and culture" did not meet the school’s standards of appropriate “grooming.” Perhaps limiting this problem to Black women fails to acknowledge the importance of hair to Black identity and culture. It is all too easy to limit this issue to a single gender. There will be no divide and conquer today.

No, there is no such thing as an easy road when it comes to Black hair, no matter how utterly fabulous one may be.

--Michele Okoh

Baking In Inclusion

It was my privilege to be part of the planning committee for the Environmental Law Collective 2023 meeting organized around the theme Consumption and The Good Life in the Anthropocene. Planning this meeting prompted some deep thought about what the “good life” means. For me, the answer involves being part of a community; being welcomed, valued, and included. So, I decided to focus my attention on the specific people gathering in Oregon, and what it would mean for us to share “the good life” during our time together.

So many organizations, including law schools, have been criticized for being white spaces, settings in which diversity is absent, not expected, or marginalized. This criticism is not an assertion that law schools, law organizations, and law societies are off limits to people of color, or to religious and gender minorities. Instead, the critique is that these spaces are structured with cis-hetero-whiteness as the default, as what is normal, unremarkable, and given. Deviations from this presumed “regular” person are always noteworthy—and often suspect. Such spaces only accommodate the “other” willing to alter themself to conform with pre-existing practices. Sandy Levinson characterized this phenomenon as a form of inclusion that is predicated on newcomers “bleaching out” their self-identity.

In the wake of the racial reckoning sparked by the murder of George Floyd, critiques of bleached-out inclusion gained increased traction. Even as the U.S. Supreme Court actively undermines voting rights, reproductive rights, and affirmative action, critics nevertheless demand radical transformation of white spaces. Rather than expecting historically-excluded groups to adapt themselves to the social architecture of white spaces as they have already been made (to paraphrase Lawrence Lessig), they instead demand that white spaces change in order to reflect the full diversity of those who use them.

This transformative vision of diversity, equity, and inclusion (DEI) has triggered a virulent, sometimes violent, backlash. We see this backlash when trans children want to use bathrooms or compete in sports, or when a “Wise Latina” brings empathy to the Supreme Court. This backlash emerges whenever, instead of gratefully conforming themselves to existing practices, the newly-admitted instead try to alter the pre-existing social architecture.

Many scholarly descriptions of “white spaces” emerge from a specific racialized context in the United States, but subaltern critiques and decolonization studies make similar points. As part of a summer writing collaboration, Professor Carmen Gonzalez and I applied these insights to what she termed “the unbearable whiteness” of environmental law. [link coming]

I am convinced that these ideas have wide salience for how to make any group a welcoming community. So, as part of organizing this conference on “the good life,” I decided to apply them to my portion of the planning process—the food. That meant thinking about how (and whether) our catering practices could make every person joining us feel fully part of the community we were created.

Maybe, having gotten this far, you dear reader, conclude that I was overthinking. Maybe I was. An extremely poor cook myself, I am remarkably unqualified to assess what commitment to authentic diversity, equity, and inclusion should look like in the context of feeding conference participants. Fortunately, I found an excellent caterer willing to think this through with me. More importantly, she had the expertise to make it happen.

Together we constructed a menu that took on the task of feeding the conference locally-grown, culturally-appropriate food. Our attendees had a lot in common (we are environmental law profs after all) but this seeming homogeneity cloaked wide divergences. Our relatively small group adhered to a remarkable range of eating practices—some vegans, some vegetarians, and some omnivores. There were also an array of food allergies to accommodate, some of which were life-threatening.

Our commitment from the beginning was to create meals that would work equally well for everyone. The goal was to make sure every participant had the Lockean “enough and as good” that undergirds the social commons. Enough was easy; in a country awash with food waste, it was not even a question. Indeed, overconsumption emerged repeatedly as an important sub-theme in our conference conversations about “the good life.”

“As good” seemed much more challenging. As a vegetarian, I am quite familiar with scrounging for food at meetings when the  convenors fail to  plan for dietary diversity. I am equally used to eating uninteresting, veggie platters—the vegetarian afterthought thrown together from side-dishes. Such food makes it clear that vegetarians rate far less attention than “regular” eaters. The food comes with the (often unspoken) message that all too often undergirds such inclusion—keep quiet and be grateful we gave you something.

It was this division into “regular” and “other” that we hoped to avoid. That is where the real work of diversity, equity, and inclusion happens—making sure that everyone feels equally welcomed, equally valued, equally part of the community. Surprisingly, it turned out that providing “as good” to our participants was not that hard, at least when the issue was food. It just took prioritizing inclusion, and remembering that eating is also about culture, not just about nutrition and taste.  We skipped ingredients that posed either danger or cultural issues for any of our group members. Our incredible caterer then constructed delicious meals that shared a common core of ingredients but allowed customization for the finishes. Everyone could personalize their own portion. Those who wanted meat could add it, those that did not could add other proteins.  We all had both the same and different—at the same time. There is surely a metaphor for the good life in there somewhere.

Did we solve the world’s problems through inclusive catering? No, of course not. The food merely fueled frustrating, painful, and often frightening conversations about our rapidly warming world. But did everyone enjoy the food? Did the food help every participant know that their unique presence was valued?  I hope so.

My take-away: If we want to solve big problems, perhaps we should start by solving the small ones.  Centering difference and respecting diversity on the micro scale may offer a model for doing it on the macro scale. After all, if we want things to be different, we have to do things differently.

--Rebecca Bratspies

What Makes the Good Life?

What is the good life in the Anthropocene? For three days in July 2023, roughly fifteen environmental law professors met in Hood River, Oregon, to discuss this question. Throughout the conference, a brain trust of legal minds worked on some of the trickiest questions of our time, unpacking topics as varied as unsheltered populations in the heat to solar geoengineering. This was an ordinary academic meeting, with a typed, pre-set agenda, structured presentations, and formal meal and break times. Although they were interesting, however, it was not the conversations at the formal meeting times that interested me.

Instead, what caught my attention was what was happening outside of the formal discussions. What did people do during breaks? Where did their interests tend after hours? What were the “off-point” conversations people made? It was here, in these spaces between what we were “supposed” to be doing, that law professors—unaware that they were being observed—unconsciously revealed their preferences of what the “good life” meant to them. What came forward was observations of tactile, physical connection with the natural world. When academics aren’t performing the job of being academics, they are humans – humans on a planet spinning around the sun, one species among countless others with a thirst for contact with the natural world.

Here are some of the things I observed my colleagues doing:

• Swimming in the Columbia River Gorge at 9 pm. They submerged their bodies in lukewarm water, dark blue, framed by the hunter-green fringe of a tree line contrasting against the warm pink of a not-quite-visible subset.
• Standing in the sun between meetings, arms outstretched. “I am like a lizard, taking in the sun,” my colleague said. Her animal body wanted sunlight as a repose from the air conditioning.
• Wandering down to wild blackberry bushes and picking a few misshapen ripe berries to share with others back in the conference room. The store-bought blackberries in a plastic carton were larger and sweeter – almost double the size of the berries held in the hands. But, although a bit more bitter, the wild ones touched something in the soul.
• Sneaking off to a yarn store during a break, in purist of the texture of wool shorn from a sheep to pass through one’s hands during long hours of meetings. Knitting, fingers against the soft blue and dark blue yarn, looping over needles as voices spoke.
• Holding a colleague’s squishy, smiley little baby – tickling toes and making eye contact to elicit a smile from the tiny person. Parents whose children were grown held the baby’s back against their chest, rocking it with an instinct once gained and never lost – body to body in a gentle bouncing motion.
• Walking with dogs, bringing them to the river, and watching them bark, stretch their leashes, and pull.
• Drinking wine at a tasting at a local vineyard. Allowing the labor of farmworkers and vintners to wash over the tongue to compare different vintages and varietals.

These observations reveal people in animal bodies, interacting with space and one another in unguarded ways. But this is the good life and what we all want. It is true that without shelter or physical safety, or adequate healthcare, many cannot access the good life. But it is also true that by reducing life to things and possessions, we forget what my colleague’s actions revealed:  the good life exists in small bits of pleasure that are inexpensive, easily obtainable, and nearly universal. We like different experiences but are drawn to some physically comforting intersection between where we are in a moment.

It is easy to critique the attempt to thus broaden my set of observations as oversimplified in two ways. First, without coordinated environmental action of the type discussed in meetings, these small moments of joy will not be so joyful. Sure. If the river is polluted, people cannot swim in it. If wildfires ruin grape crops, the wine will not taste good. So, this line of critique might go. However, not all the things we enjoy are available for engagement with legal and economic structures. This is true; it does not diminish how good the heft of a baby feels in one’s arms to know that the child may grow up in a world wildly different than our own. To deny the sensual pleasure is to deny humanness, beingness. We can know one thing but physically feel another in our bodies; the physical felt-ness is not wrong, even if it is not what our intellect would have us feel.

Second, the pleasures available through yarn and wine enjoyed on a weekday reflect the privilege of professionals. There is undoubtedly privilege embedded in structural systems that allowed this group to be in a beautiful place, the carbon emissions spent flying, the social inequalities underlying long breaks on a workday. This, I think, is right. But it does not diminish the universality of the joy of place. Like music or art, one’s capacity to enjoy nature and physical connectedness to place are not the exclusive providence of the privileged or even the human. Most people know what it is to enjoy the feel of sunshine, water against the skin, and food texture in the mouth.

The good life in the Anthropocene must include connection to the physical world. It is easy to treat the body as a vehicle for shuttling about minds, but our animal bodies crave sensations and drive us to explore and experience place. We want to touch yarn with our fingers and taste warm blackberries, the sensation of water and sun against our skin, and experience with our tongue the physical manifestation of a winemaker’s gift. We are physical beings in a material world. Perhaps honing into these aspects of the good life—simple, universal, physical, felt—might reveal new answers about how we can enjoy one even in a changed, changing world.

--Karen Bradshaw

Living the Good Life in the Anthropocene: Essays from the Environmental Law Collaborative

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, discuss, and write on an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC participants seek to use their disparate areas of scholarly expertise to study trends and important events in the law and ultimately to improve the environmental conditions of the world in which we live. 

Participants at the ELC’s most recent meeting in July 2023 were asked to consider what it means to live the good life in the Anthropocene. To frame the conversation, participants first considered the Stockholm Resilience Center’s concept of planetary boundaries. As the Anthropocene progresses, the Center has concluded that the number of planetary boundaries that we are crossing is steadily increasing, from three in 2009, when the Center’s researchers first introduced the concept, to six in 2023.

Planetary boundaries represent a safe operating space for humanity; crossing them, in turn, means that humans are changing basic attributes of planetary systems—such as biodiversity, climate change, freshwater use, and toxic loadings—to the point of risking the future of human civilization.

However, for the first time, in May 2023 in Nature, these researchers assessed not only the safe planetary boundaries but also the just ones. Considerations of equity and justice, the authors concluded, require that we re-think three of the planetary boundaries: nitrogen, which is critical for fertilizing crops but also creates water pollution, harmful algal blooms, and marine dead zones; aerosols; and climate change, which imposes disproportionate impacts on some populations.

The distinction between “safe” and “just” planetary boundaries raises several questions regarding how to conceptualize the “good life” in the Anthropocene. The ELC discussions in July 2023 and the essays that follow played with various conceptions of the “good”—from “enjoyable” to “moral”—as well as the various elements necessary to a good life in the Anthropocene, from choice to respect to requirements like fresh water to amenities like outdoor recreation.

 Authors and titles of the posts:

• Karen Bradshaw, What Makes the Good Life?
• Rebecca Bratspies, Baking in Inclusion
• Michele Okoh, Reflections on Beauty in the Anthropocene
• Danielle Stokes, Governing for the Good Life
• Amber Polk, The Tragedy of Living in the Anthropocene
• Melissa Powers, Consuming Our Way to Clean Energy
• Karrigan Bork & Keith Hirokawa, Reallocating Environmental Risk
• Shannon Roesler, What the Many Meanings of Shelter Share
• Cinnamon Carlarne & Keith Hirokawa, Imagining Climate Havens in a Boiling World
• J.B. Ruhl, Eating Cheetos in the Anthropocene: Governing the Good Life at a “Whole of Consumption” Scale 
• Robin Kundis Craig, Rationalizing Water Consumption in the United States: Hydrogeological Reality vs. The Constitutional Right to Travel  ​
• Sarah Fox, Consumption All the Way Down
• Ruhan Nagra, Green Colonialism
• Kevin Lynch, Breaking Our Consumption Addictions
• Jessica Owley, What Is the Good Life in the Anthropocene?
• Anastasia Teletsetsky, Inequity, Excess Commercialization, and Overconsumption in the Anthropocene: Two Very Modest Regulatory Proposals 
• Bruce Carpenter, Josh Galperin & Francis Hicks, Accessioning Joy

The Environmental Law Collaborative would also like to thank the USC Gould School of Law and the Vanderbilt Law School for their generous support of the July 2023 meeting!

--Robin Craig, Rebecca Bratspies, & J.B. Ruhl

Taking the Environmentalism out of Environmental Law

The Council on Environmental Quality recently proposed to update its regulations for implementing the National Environmental Policy Act. The proposed new regulations are modest in their scope; they largely focus on clarifying regulatory language and conforming that language with court decisions and long-existing practices. But the proposed regulations also talk about addressing climate change and environmental justice in NEPA reviews. Somewhat predictably, those mentions have provoked outrage, as has the entire regulatory effort.

A recent piece in Forbes captures the tenor of the debate. The author, an economist at the Competitive Enterprise Institute, described the proposed regulations as “a regulatory bomb that threatens to blow up infrastructure permitting reform.” He went on to assert that the proposed regulations are

a dramatic attempt to undermine bipartisan Congressional efforts to streamline energy and infrastructure project reviews. If finalized, this rule will lead to longer approval times, increased litigation risk, and mounting uncertainty surrounding the steps to obtaining a permit, all while throwing in doubt the viability of America’s ongoing clean energy transition.

This is ridiculous—the proposed new regulations are consistent with existing practices, and the best available evidence shows that NEPA has little impact on permitting associated with the clean energy transition—but most of its ridiculousness is a subject for another post. Today’s focus is another statement in the piece. The author also claims that, “[a]s the Supreme Court has repeatedly affirmed, NEPA is a procedural statute that does not elevate environmental concerns over other policy objectives.” For this reason, the author argues, it is wrong for the proposed rules to amplify goals like climate-change mitigation or environmental justice or to discuss mitigation measures for environmental harms.

The move here will strike many environmental lawyers as familiar. A common industry talking point takes statutes or legal doctrines designed to protect the environment and attempts to convert them into neutral referees of environmental disputes. I’ve heard this repeatedly in discussions of California’s public trust doctrine, which water-district attorneys routinely, and inaccurately, describe as a simple balancing test, with no thumb on the scales in favor of environmental protection. You can also see it in the Supreme Court’s recent Sackett decision, in which Justice Alito’s opinion for the Court studiously ignored statutory language declaring the Congress wanted clean water while emphasizing later language about empowering states, and Justice Gorsuch’s concurrence argued that the Clean Water Act is really just focused on protecting navigation. These revisionist readings have two goals. The first, and most obvious, is to tip the interpretive scales against environmental regulation. The second is to bolster arguments that these laws are just red tape. After all, if NEPA is just procedure, with no real goal of environmental protection, what’s the point?

But these attempts are wrong, and NEPA itself exemplifies the reasons why. That the statute does not establish substantive environmental protection requirements for an agency that completes an environmental impact statement has long been settled. But that does not mean the statute is neutral with respect to environmental protection. Quite the opposite; the statute begins by noting “the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man,” and goes on to assert “that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” The debt-ceiling bill did not remove any of that language. After the bill, as before, the statute clearly is about protecting the environment, and it also is about protecting people who are impacted by environmental problems. To discuss climate change and environmental justice—two of our greatest environmental challenges—is consistent with this statutory orientation.

With mitigation, the story is a bit more complicated, but again, the discussion is appropriate. While NEPA is widely understood to have no substantive bite against an agency that completes an EIS, NEPA lawyers also have understood for decades that a federal agency that wishes to proceed with a discretionary action without preparing an EIS does have a substantive obligation. It must ensure that the action’s environmental impacts, if they exist, are less than significant. In other words, it must respect Congress’s determination that it is illegal to proceed with an action causing significant impacts unless the agency first prepares an EIS. Agencies often use mitigation to reduce impacts to less-than-significant levels, and it therefore is appropriate for the CEQ’s regs to address the level of assurance those mitigation measures must provide. To leave that assurance unspecified would be to risk widespread thwarting of NEPA’s most basic mandate.

The broader point is straightforward. When anti-regulatory activists try to take agencies to task for interpreting environmental statutes as advancing environmental goals, we should take their claims with some large grains of salt. Advancing environmental goals is the main thing environmental statutes were written to do.

- Dave Owen

Taking the Environmentalism out of Environmental Law

The Council on Environmental Quality recently proposed to update its regulations for implementing the National Environmental Policy Act. The proposed new regulations are modest in their scope; they largely focus on clarifying regulatory language and conforming that language with court decisions and long-existing practices. But the proposed regulations also talk about addressing climate change and environmental justice in NEPA reviews. Somewhat predictably, those mentions have provoked outrage, as has the entire regulatory effort.

A recent piece in Forbes captures the tenor of the debate. The author, an economist at the Competitive Enterprise Institute, described the proposed regulations as “a regulatory bomb that threatens to blow up infrastructure permitting reform.” He went on to assert that the proposed regulations are

a dramatic attempt to undermine bipartisan Congressional efforts to streamline energy and infrastructure project reviews. If finalized, this rule will lead to longer approval times, increased litigation risk, and mounting uncertainty surrounding the steps to obtaining a permit, all while throwing in doubt the viability of America’s ongoing clean energy transition.

This is ridiculous—the proposed new regulations are consistent with existing practices, and the best available evidence shows that NEPA has little impact on permitting associated with the clean energy transition—but most of its ridiculousness is a subject for another post. Today’s focus is another statement in the piece. The author also claims that, “[a]s the Supreme Court has repeatedly affirmed, NEPA is a procedural statute that does not elevate environmental concerns over other policy objectives.” For this reason, the author argues, it is wrong for the proposed rules to amplify goals like climate-change mitigation or environmental justice or to discuss mitigation measures for environmental harms.

The move here will strike many environmental lawyers as familiar. A common industry talking point takes statutes or legal doctrines designed to protect the environment and attempts to convert them into neutral referees of environmental disputes. I’ve heard this repeatedly in discussions of California’s public trust doctrine, which water-district attorneys routinely, and inaccurately, describe as a simple balancing test, with no thumb on the scales in favor of environmental protection. You can also see it in the Supreme Court’s recent Sackett decision, in which Justice Alito’s opinion for the Court studiously ignored statutory language declaring the Congress wanted clean water while emphasizing later language about empowering states, and Justice Gorsuch’s concurrence argued that the Clean Water Act is really just focused on protecting navigation. These revisionist readings have two goals. The first, and most obvious, is to tip the interpretive scales against environmental regulation. The second is to bolster arguments that these laws are just red tape. After all, if NEPA is just procedure, with no real goal of environmental protection, what’s the point?

But these attempts are wrong, and NEPA itself exemplifies the reasons why. That the statute does not establish substantive environmental protection requirements for an agency that completes an environmental impact statement has long been settled. But that does not mean the statute is neutral with respect to environmental protection. Quite the opposite; the statute begins by noting “the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man,” and goes on to assert “that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” The debt-ceiling bill did not remove any of that language. After the bill, as before, the statute clearly is about protecting the environment, and it also is about protecting people who are impacted by environmental problems. To discuss climate change and environmental justice—two of our greatest environmental challenges—is consistent with this statutory orientation.

With mitigation, the story is a bit more complicated, but again, the discussion is appropriate. While NEPA is widely understood to have no substantive bite against an agency that completes an EIS, NEPA lawyers also have understood for decades that a federal agency that wishes to proceed with a discretionary action without preparing an EIS does have a substantive obligation. It must ensure that the action’s environmental impacts, if they exist, are less than significant. In other words, it must respect Congress’s determination that it is illegal to proceed with an action causing significant impacts unless the agency first prepares an EIS. Agencies often use mitigation to reduce impacts to less-than-significant levels, and it therefore is appropriate for the CEQ’s regs to address the level of assurance those mitigation measures must provide. To leave that assurance unspecified would be to risk widespread thwarting of NEPA’s most basic mandate.

- Dave Owen

The broader point is straightforward. When anti-regulatory activists try to take agencies to task for interpreting environmental statutes as advancing environmental goals, we should take their claims with some large grains of salt. Advancing environmental goals is the main thing environmental statutes were written to do.

Environmental Law Faculty Hiring, 2023-24

Each fall, I write a post listing schools that are interested in hiring tenured or tenure-track environmental law faculty. This year's list appears below. 

Readers should be aware of a few things about this list. First, it is limited to tenured, tenure-track, and long-term-contract hiring. I haven't made an effort to identify visiting positions. That's because visiting positions tend to open up later in the academic year.

Second, this list may grow in the next few weeks, and I'll continue updating the post if it does, but it's also likely to remain incomplete. I've compiled the list by looking at Prawfsblawg's post on entry-level hiring committees and by soliciting input from the environmental law professors' listserve. There may be interested schools that (a) didn't post their interest on Prawfsblawg; (b) don't have faculty members on the listserve; and/or (c) choose to keep their hiring preferences to themselves. Schools’ priorities also may evolve over the next few months. Strong environmental law candidates therefore may draw interest from schools that aren't listed below.

Third, schools that are interested in environmental law hires are probably also looking at other subject areas. They may hire in those areas rather than environmental law, and they also may not hire at all.

Fourth, this is just a list, along with some very brief information provided by the schools. You get to find the full announcements on your own.

With those qualifiers, the list appears below. As it was last year, the list is long.

- Dave Owen

Alabama lists environmental law as an area of interest.

American lists environmental law as an area of interest.

Arizona State lists environmental law as an area of interest.

Boston College is looking for an environmental law professor.

Cornell is looking for a senior-level environmental-law hire.

Florida State lists environmental law as an area of interest.

Buffalo is looking for an environmental/sustainability person.

Colorado lists energy law as an area of interest.

Florida’s list of areas of interest includes environmental law (and administrative law).

Georgia is looking for an international law person, which might cross over with international environmental law or climate law.

Environmental law is one of several areas of interest for Hawaii.

Kansas is looking for an environmental/natural resources/renewable energy professor.

LSU’s list of areas of interest includes environmental law, along with food and agriculture law.

New Mexico is seeking an entry-level or lateral hire for its natural resources and environment program.

Ohio State includes environmental and energy law on its list of areas of interest. It’s looking for entry-level or lateral candidates.

Oregon is looking for an entry-level professor to teach environmental law and climate justice.

San Diego lists environmental and energy law as areas of interest.

SMU is hiring an energy and/or natural resources professor.

South Carolina lists environmental law as an area of interest.

Temple lists energy law as an area of interest.

Tulane lists environmental law as an area of interest.

The Food and Agriculture Clinic at Vermont Law and Graduate School’s Center for Agriculture and Food Systems is hiring an Assistant Professor and Clinic Director.

Washburn is looking for an environmental law professor, with a special interest in candidates "who can teach environmental law, environmental justice, and natural resources broadly (including oil and gas law, energy law, and renewables)."

William and Mary lists environmental law as an area of interest.

Nonpoint Source Regulation in Northwestern California

Yesterday was a bad day for people who care about water quality. The Supreme Court’s Sackett opinion gutted traditional Clean Water Act jurisdictional standards. Others have appropriately shredded the decision (examples here and here), and I’ve previously critiqued the shoddy textual analyses and the misunderstandings of environmental-law federalism that underpin both this latest decision and its problematic predecessors. But enough with the bad news, for now. This post is about progress in water quality regulation.

In a just-published article, I explore nonpoint source regulation by California’s North Coast Regional Water Quality Control Board, which governs the waters in a stunningly beautiful swath of land stretching from just north of the Bay Area to the California-Oregon border. I hope the article will be of interest to anyone hoping to improve nonpoint source regulation, which this country has traditionally done quite poorly with. It also may be of interest to environmental law professors who cover Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002), a commonly taught case, in their environmental law classes.

The study leads to several conclusions, each explained in more detail in the paper:

• Comprehensive nonpoint-source regulation is possible. It may seem like a mythical creature, but in the North Coast region, a comprehensive program is emerging.
• Familiar regulatory models can work. I found that many of the emerging regulatory programs draw on traditional Clean-Water-Act tools. There was some creativity involved, and a lot of work, but regulators generally were not inventing novel regulatory approaches.
• Nonpoint source regulation, though possible, is challenging. Everyone I spoke with agreed that nonpoint source regulation requires persistence and a lot of attention to the intricacies of both landscapes and human relationships.
• Complementary tools matter. Progress in protecting water quality—and there has been progress—has come through a combination water-quality regulation and other initiatives, including both governmental regulation and private initiatives.
• Nonpoint source regulatory programs can be phased in. We sometimes tend to think of environmental law being born or changed in moments of dramatic change. At the legislative level, that’s sometimes true. But environmental law doesn’t really take shape until it gets implemented, and implementation can involve the incremental but persistent development of regulatory programs. In California’s north coast region, that often has meant developing gentle first-cut regulatory programs, building familiarity and relationships with regulated entities, and then, in dialogue with those entities, ramping up requirements.
• Bigfoot sightings are more likely in northern Ohio than in northwestern California. This amazed me. But the internet says it’s true. Who am I to doubt?

-Dave Owen

The WOTUS Rule Deserves Better Judging

Earlier this week, a federal district court in North Dakota enjoined implementation of a major Clean Water Act rule. The rule, which EPA and the US Army Corps of Engineers jointly enacted late in 2022, would determine which aquatic features are subject to Clean Water Act jurisdiction. In other words, it determines which waters are protected by the Act.

As environmental lawyers know well, this has been a subject of continuous dispute for many years. The 2022 rule was designed to bring the disputes to an end, and to do so by reinstating and clarifying traditional jurisdictional standards. With this decision, and with a similar recent decision from a federal district court in Texas, that stability seems increasingly unlikely.

To casual observers, this might seem like the latest turn of a broken record. But the case is worthy of closer attention, for it signals just how dramatically conservative judicial culture has shifted and how much we are losing in that shift. The decision is remarkable, even by present standards, in its level of disdain for the work of Congress, traditional administrative law doctrine, and the efforts and expertise of administrative agencies.

Consider a not-so-short list of examples:

• Early in the opinion, the court sets the tone for its discussion, asserting, without source support, that “the Clean Water Act, and the varied and different definitions of ‘waters of the United States,’ have produced nothing but confusion, uncertainty, unpredictability, and endless litigation throughout the country to date.” That statement is a remarkable dismissal of a landmark and still-popular statute—and of all the work thousands of people have put into implementing the law. It also is false. In addition to producing some litigation, the Clean Water Act has helped clean up many of the nation’s waters and has protected thousands of streams and wetlands from being filled.

• Likewise, the court claims, early on, that interpretations of Clean Water Act jurisdiction have “spawned a vast array of regulations.” But the current regulations governing jurisdiction are three pages long (the explanatory preamble is longer, as is typical, but the preamble is not a regulation). The regulations would be even shorter except that the same words are repeated in two different parts of the Code of Federal Regulations. That is not a vast array.

• The problems aren’t just with framing statements. In the body of its opinion, the court repeatedly takes the agencies to task for following governing Supreme Court and Eighth Circuit authority. For example, the court castigates the agencies for saying that jurisdiction can be established by considering the cumulative effects of protecting “similarly situated” aquatic features. Those words come directly from Justice Kennedy’s Rapanos opinion, which, as the court acknowledges, is governing law in the Eighth Circuit. Likewise, the court expresses exasperation that the rule would cover wetlands that do not have a permanent surface connection to navigable-in-fact waterways. Yet both Justice Kennedy’s and Justice Scalia’s Rapanos opinions acknowledged that jurisdiction should exist for some waterways that do not always have continuous surface connections to navigable-in-fact waterways.

• Other critiques are just bizarre. Somewhat in passing, the court holds that the rule is unconstitutionally vague. In part, this is because the rule does not define key terms, like “chemical, physical, and biological integrity”—which, as most readers will know, is how the statute itself defines “water quality.” I have never heard of an administrative rule being held unconstitutional because it directly quotes statutory language and does so without defining every word in that language. Also feeding into the court’s vagueness analysis is the fact that the rule uses words the court finds deeply confusing. Its list of offending terms: “adjacent, certain times of year, interstate waters, impoundments, material influence, mosaic, relatively permanent, seasonally, significantly affect, significant nexus, similarly situated, and tributaries” (internal quotation marks omitted). I suspect you knew what all those words meant without looking any of them up. And if you wondered about any phrase, it’s probably “significant nexus,” which the agencies had to use because that phrase comes from governing Eighth Circuit and Supreme Court authority. Apparently the agencies were obliged to play Clean-Water-Act Taboo, with the list of forbidden everyday words known only to the reviewing court.

• Lurking deeper beneath these vagueness arguments is an implicit and troubling assumption. That assumption is that a law is unconstitutionally vague if there is any ambiguity about its application—and that this ambiguity can be judged without even considering how the implementing agency seeks to provide clarity to regulated entities. But legal systems are filled with standards that are not, and cannot be, models of precision. For a familiar example, consider sports rules. What’s the difference between a hold and a legal block in football, or where is the line between legitimate physicality and unnecessary roughness? What’s the difference between a charge and a block in basketball? What merits a red card in soccer? In all of these settings, for the system of rules to function, we have to give expert referees some discretion to make judgment calls. Or consider criminal law, where the court seems to think any ambiguity is intolerable. Many crimes—think of criminal negligence, reckless endangerment, drunk and disorderly conduct, or fraud—have boundaries that are difficult to specify with complete precision, but still they are, and should be, crimes. The same reality exists for water; the rules for setting jurisdictional boundaries cannot be obligated to supply perfect advance clarity in all circumstances. Yet the court seems to view such clarity as a matter of constitutional necessity.

• Like the federal district court in Texas, the court holds that exercising Clean Water jurisdiction over all interstate waters, and thus protecting them from pollution, is unconstitutional, and that this exercise of jurisdiction is unconstitutional because it trammels upon federalism. The original federalists would be totally bewildered by this claim. They replaced the Articles of Confederation with the United States Constitution largely because they wanted to empower the federal government to address interstate problems, not because they wanted to prevent the federal government from doing so.

• At one point, the court asserts that “it is doubtful that Congress endorsed the present attempts to expand the limits of the Clean Water Act.” As evidence, the court cites, not statutory language or legislative history of the Clean Water Act and its amendments, but a recent Congressional resolution, which President Biden vetoed, disapproving the rule. The court did not explain how unenacted legislation from 2023 is evidence of legislative intent in 1972, 1977, or 1986. Nor did it acknowledge that what it calls a present expansion is not really an expansion. The rule’s jurisdictional standards are consistent with standards that have been in place, almost without interruption, since 1975, that were more expressly codified during the Reagan Administration. If post-enactment legislative history is evidence of anything, perhaps the best evidence is that Congress has never enacted legislation changing those longstanding standards.

• The court holds that the final regulation fails the logical outgrowth test (which ensures that final regulations are logical outgrowths of proposed regulations) because it is too different from the proposed regulation. As evidence, the court cites the final regulation’s use of the words “wetland mosaic” and “catchment.” But these words do not appear in the final regulation. They appear in the preamble. No administrative law principle tells agencies they cannot use words to explain a final regulation unless those words were used to explain the proposal. The court also cites the emergence of the phrase "material influence" in the definition of "significantly affect." But the court never even tries to explain how fleshing out the definition of one sub-term makes the rule fail the logical outgrowth test. The implicit reasoning is that a final rule cannot have any new words. And that is definitely not the law.

• Also in passing, the court holds that the regulation is suspect under the major questions doctrine. As articulated in recent Supreme Court decisions, the major questions doctrine applies in “extraordinary” cases in which agencies use ambiguous statutory language to launch bold, high-impact initiatives, and in which those agencies have strayed beyond their traditional areas of expertise. Even if one thinks the doctrine makes sense—it has many critics (one example here), and the critics have their reasons—this is clearly not a major questions doctrine case. As the court itself acknowledges, there is no longer anything extraordinary about litigation over the geographic scope of Clean Water Act coverage. And the agency regulation at issue implicated core areas of agency expertise and was consistent with almost fifty years of jurisdictional standards.

A final point is broader. In theory, a judge considering any case should consider the arguments of both parties. This opinion lacks such balance. Most of the opinion consists of summarizing the arguments raised by challengers—or quoting them directly, often at length—and then adopting those arguments, with not even a mention of the contrary positions asserted by the United States. Cites to the administrative record documents or statutory provisions amply supporting the United States’ positions are equally rare. The underlying assumption seems to be that the agency’s factual and legal arguments don’t matter because any accusation against a federal agency, if it comes from conservative-state attorney generals, must be true.

And that, of course, turns administrative law on its head. A basic premise of administrative governance is that agencies can use their expertise, resources, and time to craft rules that are consistent with statutory authority and with the public interest. A related and also-basic premise is that judges, when carefully reviewing those agency actions, will remember that they do not know as much about the subject matter, do not have as much time to develop that understanding, and were not delegated implementation authority by the political branches. Deference, in other words, flows from humility and democracy. In crafting the 2022 rule, the agencies honored that premise; it builds on years of careful work. In a slapdash opinion setting the rule—and much of administrative law—aside, the court did not.

- Dave Owen

You’re an Environmental Engineering, Science, or Law Student. You Should Learn How to Negotiate.

Negotiating wasn’t part of my education in environmental science or environmental law. At the time, this didn’t seem like a gap. Environmental science and engineering seemed to have little to do with negotiating with other people, and environmental law, I was taught, was rigid—except when regulators bowed to pressure and let clear and strong mandates be undercut.  Business-focused students could learn their negotiation skills. Environmental law, in contrast, was for people who could handle pages and pages of prescriptive regulations.

I’ve since learned, however, that’s not how environmental regulation actually works. In every sub-area of the field, people negotiate, and they do it all the time. They negotiate over what projects are going to be pursued and how those projects might be changed. They negotiate over which version of the facts will be the basis for decisions. Often, they negotiate over what will count as compliance. They negotiate settlements, and they negotiate permit terms. Sometimes they negotiate over the process of negotiating.

That’s true not just for the lawyers, but also for the scientists and engineers. At the United States Fish and Wildlife Service and the National Marine Fisheries Service, for example, much of the negotiating is done by biologists. At state and federal air quality regulators, the key permit-writers, and therefore the key negotiators, are often engineers.

In a just-published article, I explore this centrality of negotiation to environmental regulation, along with its implications for the field. One of the most important implications is that educators need to do a better job preparing people for the centrality of negotiating to environmental practice. When I asked people how they were trained in negotiating, the usual answer was “trial by fire.” When asked if they would have liked more training, they said yes. And when I asked experienced attorneys whether training deficits caused problems, the emphatic and repeated answer, again, was yes. As one attorney explained:

I would say the number one reason [why government employees struggle with negotiating] is that they don’t view their role as being a negotiator, even, in fact, when they’re doing it. Instead, they view their role as, “we’re the decision-maker. We have our agenda . . . .” Then they end up getting pulled into a negotiation. I’m not sure they recognize that’s what’s happened or that’s what they’re doing.

On-the-job training can help with these problems. But we can also start in school—not just in law schools, but also in the science and engineering programs that produce most of our regulators and most of the consultants who interact with those regulators. That will mean helping students understand where negotiations arise, what the subject matter might be, and what roles they might play. It also will mean helping them understand how to be good negotiators in complex regulatory environments. I hope the article is a useful step in that direction.

- Dave Owen

Textualism and Waters of the United States

On New Year’s Eve, EPA and the Army Corps of Engineers released their latest effort to define “the waters of the United States,” a key phrase from the Clean Water Act. The rule comes close on the heels of oral argument in Sackett v. United States, which seems likely to be a landmark Clean-Water-Act and statutory-interpretation case. At the core of both the rulemaking and the case is a textual question: what does the phrase “the waters” actually mean?

Seventeen years ago, in his plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), Justice Scalia offered an answer to that question. He concluded that, as a matter of basic textualism, the phrase “the waters” excludes wetlands unless those wetlands blend with other aquatic features. The Sacketts made that conclusion a key premise of their briefing. But that position doesn’t make sense. This post explains why.

In offering that explanation, I’ll take basic tenets of textualist statutory interpretation as unquestioned premises. I’ll also leave aside the broader purposes of the Clean Water Act, even though, in this particular instance, true textualism would require attention to those purposes; they’re written right into the statute. Even with just that narrow set of interpretive methods, Justice Scalia’s conclusion does not follow—never did follow—from his own interpretive methods.

Let’s start with a basic common-sense understanding of the phrase. It seems fair enough to conclude, as Justice Scalia did, that the phrase “the waters” connotes geographic features. But there is no obvious reason why some geographic features, like streams, would be included, while others, like wetlands, would be left out. If someone tells you a parcel of land contains no waters, you’d probably expect to be able to walk across it without hip-waders. And if you did encounter a swamp, you probably would feel misled. You wouldn’t say, “well, of course, these aren’t really waters, because I don’t see a continuous connection to a river that could float a boat.”

Conventional usage also supports a broader construction of the phrase “the waters.” There are many examples of the phrase “swamp waters” arising in legal, scientific and mainstream parlance. States set water quality standards for “swamp waters.” Criminal cases discuss bodies pulled from “swamp waters.” State v. McDowell, 224 S.E.2d 889, 890 (1976).  The builders of the Erie Canal faced potential liability when their waterworks caused “the waters of [a] swamp” to flood a large area of land. Com. v. Reed, 34 Pa. 275 (1859). Indeed, the phrase “the waters of the swamp” arises repeatedly in nineteenth- and twentieth-century case law. E.g., Porter v. Armstrong, 39 S.E. 799, 799 (N.C. 1901). It’s been part of English-language parlance for a long time.

The question might seem more difficult with aquatic features like desert springs or streams. But here, too, there are long-established linguistic traditions. Of all the books set in desert landscapes, none is more famous (or more readily searchable) than the Bible. Exodus, Numbers, Psalms, and Joshua all use the phrase “the waters” to refer to springs. Some of these springs may have been tributary to waters we might classify as navigable-in-fact, but some were in the Sinai Peninsula, and thus were probably what we would refer to as isolated wetlands. Likewise, Judges 5:19 refers to “the waters of Meggido,” which people with more expertise in such matters think referred to springs in wadi in the West Bank.

Justice Scalia, in his Rapanos opinion, and Justice Rehnquist, in SWANCC v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), had a potential response to this; they argued that the definition should be narrowed by the defined term. “Waters of the United States,” the justices argued, should be given a narrow construction because it defines “navigable waters,” and Congress presumably wanted that narrow meaning to carry over despite its choice of broad definitional terms. But that’s not how Congress operated in this era. In the Resource Conservation and Recovery Act, for example, Congress defined the key term “solid waste” as including liquid and gaseous wastes. 42 U.S.C. § 6903(27). The Endangered Species Act defines “species” as including subspecies and distinct population segments. 16 U.S.C. § 1532(16). We know that Congresses of the 1970s, when drafting environmental laws, often started with conventional legal terms and then defined them in unconventionally expansive ways. This may be frustrating, but the task of statutory interpretation is to interpret Congress’s linguistic choices, not to scold them. And Congresses of this era clearly expected their definitions to define their terms, not the other way around.

- Dave Owen

There is more to the waters-of-the-United-States discussion than the words “the waters of the United States.” Statutory purposes and structure should also matter. My point here is that even if we just zero in on the five words that are most centrally at issue, a broad understanding of Clean Water Act coverage ought to follow.

Climate Change and the California Vote

In one of Tuesday’s least surprising outcomes, California voters reelected Democratic Gov. Gavin Newsom. It wasn’t close. This might seem interesting only if you’re predicting the 2024 presidential primaries. But Newsom’s reelection has broad significance for climate policy and law, both in California and beyond.

Think for a moment about traditional arguments against responding to climate change. For years, perhaps the most powerful argument, at least in political spheres, was that living in a place that genuinely tries to address climate change was going to be rotten. We’d lose our way of life; we’d lose our prosperity; we’d lose our freedom.

Opponents of climate change mitigation made hay with these arguments. Indeed, fears of a response to climate change have convinced many people that it’s better to just pretend climate change doesn’t exist. And proponents of climate action have sometimes conceded the point, effectively saying that we all must suffer now for the sake of what might seem like an abstract and future goal.

This argument is hard to reconcile with the present-day realities of California.

The state has responded aggressively to climate change — not only through political rhetoric and action, though there’s been a lot of that, but also through genuine changes in our energy mix. In 2021, less than half of California’s electricity came from fossil fuel sources, according to the California Energy Commission. That share has been declining for years, driven primarily by increasing solar and wind energy generation. Electric cars are also increasingly prevalent, accounting for almost 18 percent of 2022 new-car sales.

The state has a long way to go, but Californians are well past the feeling that a renewable energy transition is hypothetical and abstract. We know people who work in renewable energy industries. We see the consequences of that work in our daily lives. If responding to climate change was going to stink, we’d know it by now — and we’d take out our frustrations on incumbent politicians. Instead, we just reelected a climate-conscious governor in a landslide.

Another Dimension to Climate Politics

For most Californians, there’s another dimension to climate politics. In addition to living through a renewable energy transition, we’re also living through the direct effects of climate change. That part really does stink, and it really is a threat to our freedoms and way of life.

The current southwestern megadrought is the most extreme in centuries, and climate change is an exacerbating factor. One of the most palpable consequences of that drought — wildfire smoke — has spared most of us this year but has been awful in previous years. When toxic smoke keeps you housebound for days on end — or when your job requires you to be out in and inhale that smoke — worries about responding to climate change seem deeply misplaced.

Instead, for many Californians, responding to climate change seems much less threatening than not responding to it. And that’s reflected in our votes.

Of course, this all might change. Getting to 55 percent non-fossil-fuel electricity is quite different from getting to 100 percent, and the challenges of achieving a fully electric vehicle fleet are well documented.

California also faces challenges making its renewable energy transition more accessible and equitable for lower-income residents. Energy-price inflation is hurting us just like everyone else (though a key driver of that inflation, for electricity prices, is wildfire liability).

Indeed, I don’t know any Californian who works on climate-related issues who thinks we have it all figured out. But I’ve also been struck, throughout my fifteen years living here, at our collective sense of confidence that we can figure it out. Many people here view climate-related challenges as exciting problems to take on and, sometimes, as entrepreneurial opportunities.

One might read this and think, “Well, that’s just California. You’ve always been different and weird.”

There’s some truth to that; a combination of environmental commitments and technological optimism is distinctive to this state. But we’re not that different. Forty-two states pump less oil than California (if you assign Gulf of Mexico production to Louisiana). Many other states have promising renewable energy resources. Many other states are feeling the pain of climate change. And Californians tend to vote their pocketbooks and daily experiences just like anyone else.

If politicians here can reap political rewards for moving toward a low-carbon future, the same can happen elsewhere. And that, I hope, is a key lesson from Tuesday’s election.

- Dave Owen

(cross-posted on the Center for Progressive Reform blog)

environmental law faculty hiring, 2022-23

For the past few years, I’ve written a post listing schools that are interested in hiring tenured or tenure-track environmental law faculty. This year's list appears below. 

Readers should be aware of a few things about this list. First, it is limited to tenured, tenure-track, and long-term-contract hiring. I haven't made an effort to identify visiting positions. That's because visiting positions tend to open up later in the academic year.

Second, this list may grow in the next few weeks, and I'll continue updating the post if it does, but it's also likely to remain incomplete. I've compiled the list by looking at Prawfsblawg's post on entry-level hiring committees and by soliciting input from the environmental law professors' listserve. There may be interested schools that (a) didn't post their interest on Prawfsblawg; (b) don't have faculty members on the listserve; and/or (c) choose to keep their hiring preferences to themselves. Schools’ priorities also may evolve over the next few months. Strong environmental law candidates therefore may draw interest from schools that aren't listed below.

Third, schools that are interested in environmental law hires are probably also looking at other subject areas. They may hire in those areas rather than environmental law, and they also may not hire at all.

Fourth, this is just a list, along with some very brief information provided by the schools. You get to find the full announcements on your own.

With those qualifiers, the list appears below. It’s long. This could be a (relatively) good year to become an environmental law professor.

- Dave Owen

Alabama is hoping to hire a professor in environmental law (including regulatory compliance).

Arizona seeks a water law attorney to represent clients and supervise students in its water law clinic.

Boston College lists “environmental law and justice” as an area of need.

Case Western lists environmental law as its first area of need.

Colorado hopes to hire in the natural resources/environmental law/energy law area.

Connecticut lists environmental law as an area of need. It also lists land use as a second area of interest.

Florida is seeking a director for its environmental law clinic and entry-level or lateral candidates in several areas, including environmental.

Florida State is looking for entry-level or lateral candidates in environmental law, among other areas.

George Washington is looking for an environmental and/or energy person. It also is looking for an environmental justice clinician (the position would be tenured or tenure-track).

Hawaii lists environmental law as an area of need, though behind several other areas.

Maine is looking for a property law professor, preferably with environmental interests.

Miami is hiring an environmental law clinic director.

Minnesota may be looking for two hires – one in energy law and one in water/environmental/climate law.

Notre Dame is looking at entry-level and lateral candidates in the general environmental law space.

Nova Southeastern is looking for an environmental law professor.

Pace is looking for a business law hire, preferably with the ability to teach a range of sustainable business classes.

San Diego lists environmental law as an area of need.

Seton Hall lists environmental law as an area of need, though behind several other subjects.

South Carolina lists environmental law as an area of need.

Temple is interested in an energy or environmental law person, especially if that person also can teach torts or con law.

Tennessee lists environmental law as an area of need.

Tulane is seeking to hire distinguished chairs in energy and environmental law. It also is seeking a clinical assistant (which means a licensed attorney) or associate professor to work in its environmental law clinic.

UC Irvine seeks a hire focused on infrastructure equity, which includes several environmental and environmental-adjacent fields.

Utah is looking for lateral or entry level hires with an interest in natural resources, water, or energy law.

Vermont is seeking two tenure-track environmental hires "with emphasis in the areas of water law, land use, sustainability, private governance, and environmental justice."

Washington University (St. Louis) lists environmental law as an area of need, though behind several other areas.

West Virginia lists environmental law and energy law as areas of need, though behind several other areas.

Willamette lists environmental law as an area of need, though behind several other areas.

Precommitment Strategies to Avoid the Justice Worst Case in the Climate Worst Case

Open-eyed assessment of the potential for and on-the-ground realities of 4 degrees of warming supports the implementation of extraordinary and immediate mitigation measures and portends that, even with such measures, climate impacts will strain adaptive capacity to the breaking point and beyond, resulting in significant societal dislocation and loss and damage.  In both contexts—the implementation of extraordinary mitigation measures and adaptation to high level warming —urgency and need have the potential to sideline or overwhelm justice. 

In the context of extraordinary mitigation, environmental review processes and community engagement—important mechanisms for exposing and preventing environmental injustice—are already eyed warily as speed bumps to be streamlined, truncated, or waived to avoid impeding the rapid deployment of mitigation infrastructure.  In the context of adaptation to high level warming, societies will transition from a steady state punctuated by the need to manage periodic emergences to a near-constant state of managing emergency. Responses to the pandemic reveal the ease with which emergency can overwhelm justice.  Vaccine nationalism evidences the instinctive national hoarding borne of unfolding emergency; domestically, the pandemic’s disproportionate impact on low-income communities and communities of color illustrates emergency’s exacerbation of vulnerability. 

It is hard to imagine that, faced with successive and deepening domestic climate emergencies (and resulting internal displacement, food insecurity, and political instability), a 4-degree United States will have the inclination or resources to send adaptation assistance abroad, regardless of the relatively more severe harms befalling its developing country neighbors and its conceded role in exacerbating those harms.  And it is easy to imagine how, within the United States, scarcity and struggle could sap the motivation and capacity to attend to justice.  The best intentions—for example, to manage internal migration to support successful relocation by low-income communities, avoid climate gentrification, and prevent receiving locations from adopting discriminatory policies, a tricky task in the best of times—may yield to the urgency of other, more pressing adaptation needs.

Can we prevent the urgency of avoiding the climate worst case and the exigencies of adapting to it from eclipsing justice?  Incorporating binding precommitments to rough justice, triggered and enforceable through automatic processes and made in the relative cool of now as opposed to the heat of later, into mitigation and adaptation law could help.  Key aspects of a precommitment strategy might include that it is binding (not easily reversed—set out in statute as opposed to regulation, for example), automatic (triggering a clear and measurable outcome or duty that is not dependent on the exercise of discretion), and early (the commitment should be made prior to the circumstance(s) in which it would be implemented).  Such precommitment strategies are unlikely to achieve fully just outcomes (and might best be accompanied by other, more typical mechanisms for advancing justice), but they could help to prevent least just outcomes.  (Of note, the phrase precommitment strategy is used here in a broad sense and does not refer specifically to restraints on near-term rollbacks of climate policy for the benefit of future generations, although some advocate for such precommitment approaches to buttress climate mitigation policy; however, the concept is similar.)

New York’s Climate Leadership and Community Protection Act provides an example of a precommitment to justice as well as examples of more typical efforts to advance justice that might prove less durable in the face of high-level warming.  The statute provides that disadvantaged communities “shall receive no less than thirty-five percent of the overall benefits of spending on clean energy and energy efficiency programs,” giving statutory force to the recognition that environmental justice includes  equitable distribution of benefits.  This precommitment is automatic, binding, and early—a clear duty, enshrined in statute and decided prior to the distribution of funds.  The statute contains many other mechanisms for incorporating justice into mitigation and adaptation policy, some of which come close to a precommitment to justice by mandating a relatively clear duty and others that require too much judgment or discretion in their application to be considered automatic. 

For example, in developing regulations to implement statewide greenhouse gas emission limits, the department is required to “[e]nsure that activities undertaken to comply with the regulations do not result in a net increase in co-pollutant emissions.”  The bar on an increase in co-pollutants constitutes a relatively clear statutory command, but the need to evaluate whether and how the department’s regulations prompt an increase in co-pollutants introduces some uncertainty about the automaticity of the command—whether its violation would be clear and the command readily enforceable.  The department is also exhorted to “[p]rioritize measures to maximize net reductions of greenhouse gas emissions and co-pollutants in disadvantaged communities,” a charge that is not sufficiently clear to constitute a precommitment.  All these efforts to advance justice through mitigation and adaptation policy are good; the present point is simply that precommitments may prove especially durable and valuable as we face high level warming.

What might precommitments to justice look like in other contexts?  With respect to the knotty problem of balancing fulsome review with speed in siting and deploying mitigation and adaptation infrastructure (knotty in part because there are important justice values served by achieving rapid, effective mitigation and adaptation), a precommitment to justice might take the form of preserving process where it is most likely to serve justice, i.e., by streamlining, truncating, or waiving environmental review processes except in environmental justice communities.  So, a high-voltage transmission line (or an industrial-scale solar array or wind farm or grid-scale battery storage) would be eligible for streamlined review and process if located to avoid environmental justice communities.  This would create a disincentive to locate undesirable mitigation infrastructure in environmental justice communities, thereby countering the many forces, like low cost and less effective community opposition, that tend to pull such undesirable land uses to them.  And it would preserve process for communities most likely to need the protection that process can afford.  The interests of residents of these communities may be less well-represented in upstream decisionmaking, community members may not be positioned to access other levers of power to prevent harms, and members of these communities may already be suffering from higher burdens of cumulative environmental harms.

Precommitments might also—building on the idea that they should be early in time—take the form of automatic transfers that occur only if/when certain warming thresholds are crossed (contingency).  Efforts by low-lying island states to seek compensation for loss and damage have gained little traction on the world stage despite the strong moral claim that underlies them and the foreseeable perils these nations face.  (Although loss and damage is addressed in Article 8 of the Paris Agreement, the Decision adopting the Paris Agreement states that “Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”)   

But what if low-lying island states proposed that polar assets, increasingly valuable in a warming world and subject to disputed claims of ownership, be understood as part of our common heritage except that interests in polar assets (ownership, shares, or other mechanism for profit sharing) will, by prior agreement, be automatically transferred to citizens of low-lying island states should certain warming thresholds be crossed or climate impacts realized?  An early, contingent precommitment may reduce opposition (states aren’t being asked to transfer wealth now or perhaps ever) and create a global incentive to mitigate to avoid crossing those thresholds. 

Or imagine adopting as an adaptation policy now a contingent precommitment to grant title in public land in climate-safe(r) locations upon the crossing of identified climate thresholds to tribes whose sovereign lands become uninhabitable as a result of climate change.  This could be done without requiring tribes to cede ownership of or formally abandon land to which they are deeply connected.  Even areas unsuitable for permanent communities might retain significant value for visitation to allow tribal members to maintain a connection to place.  Together, these factors could encourage safer, earlier relocation.

As pie in the sky as some of these ideas sound, just outcomes may be more in reach now than they will be in the decades to come—in the heat of the moment, competing against a multitude of pressing climate concerns.  Any precommitment strategy would, of course, need to be carefully examined in the context in which it is being deployed.  With respect to environmental review for mitigation infrastructure, for example, delaying infrastructure deployment could negatively impact justice by exacerbating climate change and its impacts on the most vulnerable; care would also need to be taken not to drive green investment away from environmental justice communities, resulting in a loss of economic opportunity.  And it should be conceded that precommitment strategies can’t satisfy all justice values; we should continue to push for more.  But perhaps we should also hedge our bets by locking in a modicum of rough justice.

- Katrina Fischer Kuh, Haub Distinguished Professor of Environmental Law, Elisabeth Haub School of Law at Pace University.

Catastrophic Inequality in a Climate-changed Future

Climate change has consistently proven to be more extreme than climate models have projected. If this trend towards extremely unpleasant surprises holds, more drastic adaptive responses will be required. Climate change poses an existential threat to human societies because it disrupts the supply of natural resources that provide basic life necessities such as water, food, energy, and housing. At least in affluent countries, these necessities are abundant enough to be readily available for a vast majority of their populations. But in a climate-changed future, with floods, droughts, hurricanes, wildfires, and extreme heat disrupting the supply and production of life necessities, availability could become sporadic and uncertain. Wildfires, drought, and extreme heat could combine to significantly suppress California agricultural production, which accounts for one-seventh (by value) of all American agricultural products. Unfortunately, demand for life necessities is very strong at low quantities – they are necessities, after all. Shortages will drive up prices sharply, posing hardships for many and posing severe hardships for poor households. With inequality measured less by wealth and more by probabilities of survival, unrest will follow.

Governments can avert this kind of catastrophic inequality by proactively developing a capacity to be a supplier of last resort for basic life necessities. It can do this by creating a trust instrument with the ability to step in to produce or supply basic life necessities should shortages occur. Importantly, such an instrument, which I have dubbed a "Resources Trust," should not normally interfere with ongoing market or administrative processes that supply life necessities; only when certain signs of shortage appear, should a Resources Trust spring into action and inject some emergency supply. Also importantly, the amount supplied need not be very large. A Resources Trust need not make up every shortfall; it need only inject enough supplemental supply to lower the prices of life necessities to nearly normal levels. The demand for life necessities flattens out quickly once basic needs are met.

A Resources Trust is essentially an emergency stand-by supply of vital life necessities, an effective reserve for the growing number of emergencies in a climate-changed future. It is a tricky proposition to be able to produce, but to minimize interference with existing markets. But it can be accomplished by an astute collection of rights, options, and technologies. For example, a Resources Trust can assemble a portfolio of water options, which can be exercised in shortage situations. Or, a Resources Trust could do what some billionaire investors are already doing: buy land with appurtenant water rights for production or for speculative purposes, so as to be able to maintain some capacity for extracting water or growing food. Alternatively, a Resources Trust can also develop and deploy some backstop technologies that only become economical at higher prices. Fortunately, that is what a Resources Trust is supposed to do: spring into action only when shortages have driven up prices, threatening the budgets of many households, but especially poor ones. One backstop technology that could be deployed to address potential water shortages is desalination: while typically more expensive than traditional means of supplying water, in a shortage situation with high prices for water, it can mean the difference between life and death. This is how climate change will be a great un-equalizer for even affluent countries.

A Resources Trust might also adopt the backstop technology of greenhouse agriculture, a seemingly simple technology, but in a modern society, a source of innovation and productivity gains over conventional technology. Greenhouse agriculture has enabled the tiny country of the Netherlands to be a world food export juggernaut, a fairly close second to the United States. Having a low footprint and low maintenance needs, greenhouse agriculture is capable of operating at low production levels until it is needed to ramp up quickly and produce at high quantities.

Another backstop technology that a Resources Trust might employ to be a supplemental energy supplier is the wide-scale adoption of energy storage, or batteries. Wind and solar energy are abundantly available, and if excess wind- or solar-generated electricity can be stored, they can provide a crucial reserve for emergencies during climate events such as hurricanes, wildfires, floods, or extreme heat, in which electricity shortages might occur. Fortunately, energy storage technologies are advancing rapidly, so batteries might be situated in enough places to overcome transmission problems. A Resources Trust could, at reasonable cost, maintain significant reserves of electricity in a multitude of locations for use in times of shortage. Batteries could be installed in certain locations to guard against the common occurrence of electricity blackouts disproportionately affecting vulnerable populations.

Housing presents unique issues for a Resources Trust, as the history of government-subsidized housing is, on balance, disappointing. However, climate change is a uniquely existential threat, and shelter is such a basic human need that governments cannot shrink from being a provider of last resort. If, as expected, extreme weather, floods, wildfires, and other climate events become more frequent and more severe in the future, they may increase losses of housing by sufficient amounts to necessitate some response from a Resources Trust. It is worth keeping in mind that disaster responses have always involved the provision of some shelter, whether it be massive cooling stations, temporary shelters, or more ignominiously, the Louisiana Superdome. Resources-Trust provision of housing is just a difference in degree and, hopefully, in quality.

A Resources Trust appears to be a foreign concept, but it is really only different in degree from other government instruments intended to provide in times of need. The Strategic Petroleum Reserve is one analogous instrument. If it weren't so ironic, the Strategic Petroleum Reserve could be considered an emergency source of energy for times of climate crisis. Sovereign wealth provides another analogy, collecting excise taxes in small amounts and investing them in accordance with a charter setting forth some future, provisional purpose. A Resources Trust is just an extension of the sovereign wealth concept, albeit one with complications extending beyond financial investments. However, governments must be able to respond to the existential threats posed by climate change. Climate change threatens to impose vast harms upon everybody, but the most immediate and existential threats are borne by the most vulnerable. If government cannot ensure the availability of basic life necessities to its citizens, rich or poor, it becomes a failed state. Inequality of wealth is one thing; inequality of survival prospects is wholly another. Unrest will follow.

- Shi-Ling Hsu, D'Alemberte Professor of Law, Florida State University College of Law.

Letting Go of 2˚ C, Letting Go of Race?: What does climate justice mean at 4˚ C?

Given the “existential threat to democratic governance” posed by a sober assessment of continued global climate warming, J.B. Ruhl and Robin Kundis Craig, in their provocative article 4˚C,  posit the need for a reframing of established approaches to climate adaptation.  Beyond the “Three Rs” of resist, resilience, and retreat, Ruhl & Craig suggest the urgent need for redesign, a process of radical transformation that may require “letting go” of closely held beliefs, expectations, and goals.  Facing a future where “human suffering is likely to increase dramatically,” the authors urge us to “ask uncomfortable questions” and consider even the most politically unpopular measures in order to preserve democracy through the cascade of change to come.  For Ruhl & Craig, necessary measures might include community relocation and “repurposing public lands for new human settlements.”  Could the same dramatic changes in a 4˚C world also require letting go of race and ethnicity as central constructs for pursuing climate justice?

For Ruhl & Craig, equity remains a fundamental principle for the redesign process.  They stipulate that any successful redesign must maintain “opportunities and support for individuals and communities that otherwise face significant risks of being ignored, overrun, forgotten, left behind, or otherwise further marginalized.”  In the United States, historically “marginalized” communities are often communities of color, including Black, Brown, Indigenous, and Asian-Pacific Islander communities.  Recognition of the disproportionate impacts of environmental pollution on communities of color gave rise to a movement for “environmental justice” that took hold more than thirty years ago and remains as strong as ever today. 

Unlike the Civil Rights Movement of the 1960s and the Environmental Movement of the 1970s, the movement for environmental justice has never produced national legislation like the Civil Rights Act of 1964 or the Clean Water Act of 1972.  Consequently, environmental justice has remained a largely grassroots movement, driven by community organizations and increasingly reflected in state legislation.

In the absence of national legislation, communities and scholars have long endeavored to define “environmental justice.”  According to the most common definition, maintained by the U.S. EPA and adopted by many states,

Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.

One key element of this definition, embraced almost universally by state law and policy, is the application to “all people.”  For the Bush/Cheney EPA, “all people” rejected a conception of environmental justice as a program of affirmative action with racial preferences.  Perhaps unwittingly, “all people” also opened the door to an inclusive conception of environmental justice as a program intended to protect all people—all of them—to include children, the elderly, the homeless, the undocumented, and LGBTQ communities. 

In the last two decades, the movement for environmental justice has inspired allied “justice” movements, such as “food justice,” “energy justice,” and “climate justice.”  As with environmental justice, climate justice has been the subject of numerous efforts to define it.   According to one simple definition, “[c]limate justice can be defined generally as addressing the disproportionate burden of climate change impacts on poor and marginalized communities.” Other scholars have submitted that “[a]s an extension of environmental justice, climate justice is understood to focus on ‘equal rights and opportunities [for] every individual to seek a high quality of life under the impacts of global climate change.’”

This inclusive conception of climate justice as applicable to “every individual” presents particular challenges for the 4˚C future.  How do we pursue a “high quality of life” and keep “every individual” safe from the impacts of a new climate regime that human civilization has never seen?  Climate models abound, but climbing past 2˚C and the tipping points of nonlinear change, how will we know what to look for, much less how to mitigate the worst impacts?

            While acknowledging the “no-analog future,” we can usefully examine experiences of the past and present to locate specific examples of disproportionate impacts from climate change, identify underlying causes for these impacts, and eliminate or mitigate such disparities in the future.  For example –

• In 2005, Hurricane Katrina (and the anemic FEMA response) resulted in infamously disproportionate impacts among the Black population of New Orleans. Race discrimination operated systemically to place Black people in harm’s way and acted implicitly to frustrate recovery efforts. But in terms of keeping people safe, Black and white, more lives might have been saved immediately by concentrating rescue operations on elderly people, the population most likely to have impaired mobility.    
• In 2017, in the wake of Hurricane Maria, studies indicated that the two strongest indicators for mortality among hurricane victims were diabetes and heart disease. While federal regulations often define Puerto Ricans as “minorities,” a focus on such “minority” status would not allow federal responders to direct resources toward those individuals in Puerto Rico most likely in need of immediate, lifesaving care after Hurricane Maria. 
• In 2020, the COVID-19 pandemic resulted in particularly devastating impacts on Black, Brown, and Indigenous communities. The coronavirus itself did not discriminate by race, but researchers identified important conditions that made some racial and ethnic sub-populations more vulnerable than others.  Researchers from the Harvard School of Public Health, for example, found a strong correlation between COVID-19 death rates and air pollution, with poor air quality more likely found in urban environments with communities of color.  Another study by UCLA revealed that the Latino death rate from COVID in California was nearly six times higher than for Non-Hispanic whites, due to factors including lower salaries, less health insurance, larger households, and greater exposure to the public as “essential workers.” 
• In late June 2021, the unprecedented heat wave experienced in the Pacific Northwest, with all-time high temperatures in British Columbia, Washington, and Oregon, resulted in strongly disparate impacts upon the elderly. According to one preliminary report, excessive heat—including a temperature of 116˚F on June 28—was directly responsible for 54 deaths in the Portland metro area.  Of these deaths, 81.5 percent were people ages 60 or older.  According to the report, “Lack of air conditioning was a key driver in mortality.  Whereas about 80 percent of people in the Portland area have some level of air conditioning in their homes …, none of those who died had central air, and only eight people had a portable air conditioning unit in their home.”

Significantly, and defying traditional notions about climate justice, the preliminary report found that recorded deaths from the extreme heat in Portland were 92 percent white as well as 63 percent male.  While these findings surely reflect the particular demographics of Portland, Oregon, they may also remind us that race and ethnicity will not always predict, and help us prevent, all the worst impacts from climate change, particularly in the 4˚C future (which in some ways is already here with 116˚F in Portland, Oregon). 

A different approach may be grounded in vulnerability theory, pioneered by scholars including Martha Albertson Fineman.  Vulnerability theory looks beyond suspect classes, such as race, to understand why certain groups or individuals may be more susceptible than others to particular impacts in certain circumstances.  Vulnerability theory has only recently received consideration in the context of environmental justice, and it remains ripe for exploration in the context of climate justice.  Through vulnerability theory, we may understand why white males experienced greater mortality from the 2021 heat wave in the Pacific Northwest or why Latinos may suffer most with increasing heat year after year in the Southwest.  Investigating climate justice through the lens of vulnerability theory leads necessarily to heavily contextual inquiries, eschewing generalizations and replacing suppositions with careful observations, analyses, and recommended actions. 

One timely example may be illustrative.  In certain regions, families commonly pass down real property from one generation to the next with minimal documentation of title.  In the Deep South, “heirs property” often reflects the Jim Crow area, when Black people were excluded from the legal system.  Today, this system of property ownership has left many homeowners (including many people of color) more vulnerable to disasters following climate-related events such as hurricanes.  After the devastation wrought by Hurricane Ida in August 2021, FEMA finally announced a change in agency policy, allowing disaster survivors alternate forms of documentation to establish home ownership.  This welcome change in FEMA policy addresses a vulnerability factor grounded in historic race discrimination but persisting in new needs to prove property ownership.

So will keeping people safe in the 4˚C world require letting go of race?  Given our history in the United States, including the racist histories we have only begun to acknowledge, the answer must be “no,” we cannot let go of race.  To survive and thrive in the “no-analog future” will take everything we’ve got.  We will need artists, economists, engineers, lawyers, historians, and health professionals, as well as governance on all levels, the private sector, and community organizations.  No one person needs to do it all.  But we will still need some people to keep an eye on race to continue remedying mistakes of the past and help us avoid mistakes in our future.   As Ruhl & Craig observe in conclusion, “We can do better to prepare the nation for the path to 4˚C.”  Preparing for that future may require letting go of some old notions and modes of inquiry, but may also require holding onto some lessons from the past.

- Clifford J. Villa, Ronald & Susan Friedman Professor of Law, University of New Mexico School of Law.

Contemplating Equity from the Deck of the Titanic: A Metaphoric Meditation for a 4°C World

Indulge an extended metaphor.

The deck chairs on the Titanic are not arranged so that all passengers have fair access to them. For that matter, all the ship’s amenities are inequitably distributed, from food to medical care to cabin space. Many of the passengers enjoying the benefits of first class can afford to be there only because their parents, grandparents, or great-grandparents seized and exploited the wealth and labor of colonized people in the Global South, establishing the white privilege from which these passengers have benefitted their entire lives. In contrast, many of the passengers in steerage (third class) don’t really deserve to be there, either, having been trapped by an exploitative capitalistic system of labor in the lower classes. But they still benefit from white privilege, as evidenced by the almost complete lack of non-white passengers on this oh-so-prestigious crossing. Nevertheless, their safety is far less protected, and if someone below decks dies in a fight belowdecks, it is questionable whether anyone will do anything about it. The environment that these people must live in is also far less pleasant, although, admittedly, often better than what they were used to at home—close quarters, poor air circulation, shared meals and sanitation facilities, and fellow travelers who are often sick, both from seasickness and shared contagions.

No doubt about it: the Titanic needs an equity overhaul.

HOWEVER:

The ship is on a collision course with an iceberg, and there aren’t enough lifeboats for everyone.

So, pop quiz: Do you put energy into rearranging the deck chairs (and other amenities)? Or do you try to get a few more lifeboats built before the ship goes down?

Accepting the real possibility of a 4°C increase in global average temperature by the end of this century or very soon thereafter (and maybe earlier) complicates how one thinks about every aspect of human society, and that includes equity. At the very least, as the Titanic metaphor suggests, a 4°C world raises the possibility that the actions we should be taking now to promote survival equity (e.g., build more lifeboats) are not the same as the actions we want to take now to promote day-to-day equity (e.g., ensure more equitable access to societal amenities and, perhaps, redress past exploitations). However, there is also a possibility—one that J.B. Ruhl and I raise in our article 4°C—that this radically warmer world is a disruptive opportunity, that the dislocations and rearrangements it demands in response to its impacts are what will allow the full range of social transformations needed to greatly improve equitable distribution of amenities and access to opportunity. In other words, there’s the distinct possibility that a radical survival-based adaptation modality (what we call redesign adaptation) is exactly what will finally allow for radical progress in day-to-day equity, somewhat analogous to how the social transformations of World War II helped to pave the way to the Civil Rights movement.

But, of course, there’s an added complication that the Titanic metaphor elides through the immediacy of the oncoming iceberg catastrophe: Improving day-to-day equity now—at least in some respects—might also promote survival equity later. That proposition seems intuitively obvious. Indeed, it helps hone the narrative edge of one of the opening scenes in Kim Stanley Robinson’s CliFi novel Ministry for the Future: During a disastrous extreme heat wave in India, a lone American aid worker survives being parboiled in the lake that everyone has entered in an attempt to keep (relatively) cooler. As the reader learns before this gruesome scene, the American has been keeping the limited supply of cold, clean, fresh water available at his office to himself, the last of which he takes with him to the lake. As another character suggests later, this relatively small advantage in hydration, coupled with a lifetime of being well-fed and medically cared for in the United States, might be the only explanation of why he survived and the local Indians did not.

Which raises the last and most difficult part of contemplating equity in connection with a future that is 4°C warmer than the present: People are going to die. How to keep that reality from devolving into “them versus us” politics is a serious governance challenge for a 4°C future. On the real Titantic, after all, status was a major determinant of whether a person survived: Approximately 76% of both the crew and third-class passengers perished, compared to 68% of the total number of people on board, 58% of the second-class passengers, and 39% of the first-class passengers. First-class women and children passengers, in contrast, survived at a rate of about 97%.

Given that the risk of death increases dramatically as the global average temperature increases, what does 4°C survival equity actually mean? To get the discussion going, I posit that 4°C equity means that any individual’s chances of surviving and thriving are not statistically correlated with the person’s race, class, socially assigned gender-based status, or relationship to colonialism. Instead, the 4°C world will be a lot more equitable if a person’s chances of survival are, on the whole, either: (1) relatively random from a social policy perspective (e.g., genetics, getting caught in freak disasters); (2) based on characteristics that we all will share (e.g., vulnerabilities associated with aging or special protections accorded children); or (3) the result of individual choice (e.g., refusing to move out of harm’s way when there is real opportunity and ability to do so).

Let the debate commence. But where the heck did that deck chair go?

- Robin Kundis Craig, Robert C. Packard Trustee Chair in Law, USC Gould School of Law.

The Costs of Political Polarization and Gridlock

Although some Republican officials have signaled a willingness to work on mitigation and adaptation policies, political promises to address climate change still largely come from only one party: the Democrats. In fact, according to the Center for American Progress, 139 members of the 117th Congress reject climate science and the reality of a warming world; all 139 are Republicans. State governors follow a similar pattern with several Republican governors vowing to fight the Biden Administration’s efforts to lower emissions before specific policy proposals even surface.

Climate change is not the only problem that is complicated by the political polarization that pervades our political and social institutions, but it is likely the problem that will cost future generations the most. The most recent IPCC report is clear: we can avoid the worst-case scenarios for warming only if we act today. As I write this, Democratic members of Congress cannot even reach agreement among themselves about how much to spend on pressing problems including climate change. The political gridlock shows no signs of abating. It is the source of the anger and anxiety that Jessie Owley describes in her blog post.

Can we assess the costs of this political failure to address climate change? Newer climate models suggest that costs are high. These models, which are considered in the latest IPCC assessment, use a set of five narratives about the future of global socioeconomic development to forecast different warming scenarios. Created by an international team of experts, these five “shared socioeconomic pathways” offer different visions of the future based on the influence of various socioeconomic factors.

The “regional rivalry” narrative (SSP 3) is the worst-case scenario because it presents the steepest challenges to both mitigation and adaptation. This is a world defined by rising nationalism and decreasing global cooperation. It is a 4°C world unable to adapt because democratic institutions fail, and cooperation is impossible. Although this development narrative contemplates rivalry at a global scale, political gridlock and polarization at the domestic level only make the international trends in that direction more likely—especially when these divisions undermine climate policies in wealthy nations like the United States.

In their blog post, J.B. Ruhl and Jim Salzman modify the Rawlsian “veil of ignorance” thought experiment to give the lawmaker knowledge that the world will warm to 4^oC over the next 200 years. Their post made me wonder what effect this knowledge would have on our foundational constitutional commitments. Understanding that society will have to adapt to a warming world, we would no doubt want to make possible the kind of anticipatory and adaptive governance that they envision. But could we accomplish this without throwing out much of our constitutional structure?

Would we make different choices? For example, our constitutional structure is designed to make laws difficult to enact and change. Would we design our political institutions differently so that it is easier to change the status quo? Would we give states less control over national elections? Would we preclude political gerrymandering of election districts? And would we be willing to commit ourselves to limitations on speech that current First Amendment doctrine does not? For example, would we permit the regulation of false and misleading speech when it undermines the ability of others to speak? Would we commit ourselves to meaningful regulation of money in politics?

These are big questions that would ignite contentious debates today. I do not mean to suggest answers, but only to highlight some of the constitutional commitments that enable or at least aggravate political polarization and ideological division—and to acknowledge that these commitments are deeply entrenched in our constitutional culture. Ideas and norms grounded in the separation of powers, federalism, and free speech are not easily challenged.

So, if we are to break the gridlock on climate change, we will need climate change to break out of its partisan prison. Work in cultural cognition studies shows that people will hold onto beliefs even when credible evidence proves them wrong when those beliefs are closely tied to their social and cultural identities. If acknowledging the scientific consensus regarding human-caused climate change requires breaking from your group’s belief system, then it is less costly to you to continue denying it. We are seeing this dynamic play out with the anti-vaccination movement during the Covid-19 pandemic as some anti-vaccine groups invent new narratives to justify their continued rejection of vaccine safety and efficacy.

There are signs that the cost-benefit calculus is shifting for some Republicans in Congress who now acknowledge the threat that climate change poses. We need more of these voices to speak now and speak loudly. There was a moment about thirty years ago when climate change had more bipartisan support. It must happen again. Although we may feel today that we have little in common with people on the other side of the political divide, we will share in whatever future we make for ourselves now. The costs of continued gridlock are simply too great to give up on bridging the divide.

- Shannon Roesler, Professor of Law, University of Iowa College of Law.