UCLA Journal of Environmental Law and Policy

This Article responds to environmental justice arguments that undermine, rather than safeguard, health and environmental quality for low-income and minority populations.  Efforts by scholars and practitioners to clearly define “environmental injustice” to facilitate use of racial discrimination legal frameworks have had minimal success and are ultimately limiting the ability to embrace a broader arsenal of weapons in the fight against injustice.  The greatest weapon of the environmental justice movement is its people.  Environmental justice must evolve more rapidly beyond efforts to merely give communities voice, and actually redistribute power and decision making to open up opportunities for social movement intersection.  The struggle to define environmental justice is difficult because it attempts to crystalize the efforts of converging social movements that continue.  This Article advocates more explicit acceptance of environmental justice as a movement which requires focus on new strategies and tools that address historic pollution and prevent future inequitable environmental impacts.  Considering the past, present, and future of environmental justice, this article advocates for expedited cleanups of historically polluted areas, mandatory environmental justice assessments (EJA) in existing planning processes, and robust environmental justice components in local land use plans; these coordinated strategies would empower communities to realize a vison of land use freed of the historic imposition of inequity.

Can the U.S. Constitution encompass a right to a stable climate?  Courts around the world are finding that their constitutions afford a right to a clean and healthy environment, including to a safe climate.  In the United States, this claim is being tested in the case of Juliana v. U.S., brought by 21 children arguing that governmental actions and inaction have caused or contributed to an “environmental apocalypse” in violation of a fundamental constitutional right to a stable climate.  In concluding that the Constitution can encompass a right to a stable climate, we make three principal arguments.  First, the Constitution is relevant to the protection of people’s lives and liberties—a position that should be beyond cavil after more than 230 years of our constitutional experiment.  Second, the Constitution’s protection is not abrogated simply because the threat to life and liberty comes from decades of governmental action contributing to climate change.  The Constitution does not have a climate change, or even an environmental, exception.  And third, the federal judiciary is the body that, in our constitutional system, is best suited to hold accountable government actors when they imperil constitutional rights.  Five years after it was filed, the case was dismissed by the Ninth Circuit; as of this writing, plaintiffs are considering seeking review before the U.S. Supreme Court, and settlement with the Biden Administration.

Two of the most commonly discussed responses to climate change are mitigation and adaptation.  It is necessary that the world continues to mitigate greenhouse gases in the atmosphere to prevent the most severe effects of climate change, but it is just as important that adaptation measures are implemented to prepare for the unmitigable effects.  With the ongoing Israeli occupation—now reaching its fifty-third year—Palestinians in the Occupied Palestinian Territory (OPT) are prohibited from accessing resources and pursuing necessary measures to repair their existing infrastructure or prepare for the environmental effects of climate change.  As such, this Comment sheds light on the Palestinian voice, struggle, and experience while examining climate impacts under occupation by analyzing the environmental, political, legal, and humanitarian impacts of climate change on Palestinians in the OPT.

Fracking must be regulated from a tribal perspective and ultimately phased out by renewable energy sources in order to prevent environmental contamination and threats to health and safety.  Like many other components of extractive industry, fracking disproportionately harms indigenous communities due to the socioeconomic status of indigenous communities, their unique relationship to the land (and specifically to water), and other harmful effects of colonization and racialization.  This Comment explores the proposed and ongoing fracking near Chaco Canyon and discusses the environmental justice issues this raises for indigenous communities in New Mexico.  This discussion is timely, as the Bureau of Land Management and the Bureau of Indian Affairs recently released the long-awaited Farmington Mancos-Gallup Draft Resource Management Plan Amendment and Environmental Impact Statement, which amends the original Environmental Impact Statement for the Chaco Canyon area.  This Comment highlights the unregulated nature of fracking (specifically the uncertainty of spills, cleanup and remediation), its exemption from several environmental statutes, and the threats it poses to groundwater and general water quality.  The pervasiveness of these issues suggests that the most direct solution lies in cultural sovereignty and decolonial approaches to land management.