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6 Environmental Justice and a Sense of Place
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6 Environmental Justice and a Sense of Place John S. Applegate Law Environmentally literate persons should understand that environmental harms and environmental regulation operate at two di√erent levels: national or widely shared e√ects and rules, and local or narrowly felt e√ects and rules. Perhaps the most apparent and most important di√erences between the national and local are the burdens and benefits of environmental degradation and environmental regulation on specific places. Both environmental harms and remedies help some people and hurt others. A polluting factory economically benefits its owners, employees, and the local community, but it hurts its downwind or downstream neighbors.∞ Pollution control helps the neighbors (who may overlap with the owners, employees, and community), but it can also encourage the shifting of 1. These issues are explored in Richard J. Lazarus, Pursuing ‘‘Environmental Justice’’: The Distributional E√ects of Environmental Protection, 87 Nw. U. L. Rev. 787 (1993). For a more general treatment of environmental justice issues, see Kenneth A. Manaster, Environmental Protection and Justice: Readings on the Practice and Purposes of Environmental Law, 3rd ed. (LexisNexis, 2007). 78 ⭈ john s. applegate pollution from one form and location to another, as when water pollution is treated to become solid waste that is transported to another location, or when a factory’s operations move to another locality. Environmentally literate persons should be sensitive to disparities in environmental benefits and burdens, and they should also understand that identifying and justly managing disparate effects involve complex factual and philosophical issues. They should be able to analyze claims of consequences and assess their moral and political significance . These considerations should a√ect individual lifestyle choices; more importantly , they should a√ect individuals’ social and political commitments and involvement in the governance processes of the places where they live. Place and Environmental Law The environmental movement in the United States began as a heightened sense of place. The movement to create the Yellowstone and Yosemite national parks drew its inspiration from the obvious specialness of those places, their vistas, plants, animals, and geological marvels. The pioneering works of the ecologist Eugene Odum and conservation biologist Aldo Leopold—two founders of modern environmentalism—concentrated on the complex and interrelated workings of the organisms and inanimate environment of particular places. Likewise, many of the earliest pollution control laws (anti-smoke, anti-dumping, etc.) were, in essence, specific instances of the centuries-old law of nuisance, which deals with the interference by the owner of one specific piece of property with a neighbor’s property. Environmental harms and environmental remedies, in other words, expressed and protected people’s sense of particular places. As environmental law moved from concern with large-scale, readily observable phenomena, like protection of wilderness or prevention of smog, to a concern with the e√ects of chemicals on human and ecological health, the sense of place diminished. Rachel Carson, perhaps the preeminent founder of modern environmentalism, focused less in her masterpiece, Silent Spring, on particular places than on chemical harms that are ubiquitous, operate invisibly (her favored term was ‘‘sinister’’), and a√ect all human beings, plants, and animals in similar ways. (It is no accident that, while she opened Silent Spring with a ‘‘parable’’ about a town where ‘‘no birds sing,’’ that town was imaginary, not a real place.) The concern that Carson sparked in American environmental law resulted, accordingly , in new legal standards (national ambient air quality standards, technologybased water pollutant discharge permits) that were based on general chemical e√ects and were applied to specific places almost as an afterthought.≤ 2. Congress typically retained standard setting in national institutions, like the Environmental Protection Agency, and left the permitting and enforcement work to the states. [44.220.245.254] Project MUSE (2024-03-19 04:12 GMT) Environmental Justice and a Sense of Place ⭈ 79 Concern with place and with large-scale e√ects never entirely disappeared, of course. The foundational National Environmental Policy Act is primarily used to address placed-based environmental e√ects, such as those involved with highways and forest management. Nevertheless, until recently, it was generally assumed that the uniform application of national standards would improve everyone’s environment , and so a more finely tuned, locally oriented analysis was unnecessary. This assumption was challenged in a series of protests and studies that revealed apparent disparities in the siting of hazardous waste landfills. The protestors— neighbors of these landfills—claimed that landfills and...