I. Introduction

Public schools are under constant attack for "failing" America's children. Whether it is criticism of teachers, parents, or administrators, there seems to be a general malaise when it comes to the future of public schools. This can be attributed, in part, to the physical conditions of our schools. Many schools are in desperate need of repair, with lead paint, asbestos, pesticides, and poor ventilation systems prevalent in the nation's schools. Additionally, in an effort to build "better" schools in urban areas, new schools are often sited near polluting industrial facilities. Both scenarios negatively impact the health of children.

Environmental justice, at its very heart, is about the right of all people to live in environmentally healthy communities. Children spend the majority of their formative years in schools. If the schools are in poor condition or located near toxic facilities or on contaminated sites, the health and well being of their students are in jeopardy. A growing number of families are opting to send their children to private school for quality facilities as well as academics. Those that cannot afford the alternative are left to send their children to public schools that can and will make them sick. Because attending school is legally mandated, federal and state governments have a duty to ensure the environmental conditions in and surrounding schools do not negatively impact the health of students.

The environmental justice movement addresses a broad range of issues including transportation equity, fair housing, zoning regulations, and community planning. In the middle of each area of concern lies a school. Schools are located where people live, near roads, and near businesses, both industrial and commercial. The goal of environmental justice is to ensure equal protection of all people from environmental hazards and eliminate the...

I. Introduction

In Latino traditions, there is a day called "el dia de los muertos" or the day of the dead.[1]The artwork commemorating this day best illustrates its mood, featuring whimsical skeletons in brightly colored clothes, typically dancing, singing, playing music, and otherwise celebrating. The message is clear: don't take death-or yourself-too seriously. After all, death is part of life. The environmental community might want to similarly leave aside the more somber approach to its supposed death,[2]and look at its potential from a broader perspective.

In the fall of 2004, environmental consultants Michael Shellenberger and Ted Norhaus, in an article proclaiming the "death of environmentalism," started a debate about whether the environmental movement, as known and understood in more conventional U.S. circles, is a failed strategy and should be pronounced dead.[3]They suggested that as it currently exists, environmentalism is structurally incapable of adequately addressing the most serious environmental issue to confront humankind-global climate change.[4]The article sparked a vigorous debate within the environmental community. While the controversy has long since subsided, the arc of this article and various responses to it is telling and merits further reflection. There were several interesting aspects of this debate. For example, it raised questions about who exactly is the environmental community, what are "its" strategies, are they successful, and where do we go from here? Issues of race, class, and equity came to the surface. This Article examines some of the strands of this debate and how environmental justice actors fit within the project of a successful response to climate disruption.[5]It is important to keep this issue in mind as the adverse effects of climate change-while uncertain in severity, timing,...

I. Introduction

We want to destroy environmentalists by taking their money and their members. . . . No one was aware that environmentalism was a problem until we came along.[1]Facts don't matter, in politics, perception is reality.

Ron Arnold, Father of the Wise Use Movement and Creator of the Term

"Ecoterrorism"[2]

Terrorism is anything that stands in the face of what we want to do . . . people's movements of resistance against deprivation, against unemployment, against the loss of natural resources, all of that is termed 'terrorism.'

Edward Said, Columbia Professor of English & Comparative Literature[3]

In August of 2002, as I sat high in an old ponderosa pine to protest destructive logging on public lands in the Bitterroot Valley, federal agents began to cut the tree down from the top while I sat below their saw. After sawing off most of the branches, they tied one end of a rope to the trunk of the tree, and tied the other end of the rope to the bumper of a truck eighty feet below us. They would saw off a five foot section of the tree trunk, the truck would pull the rope, and the section of the tree trunk would crash to the ground. When they had cut the trunk of the tree down to where I was sitting, they lifted me into a cherry picker bucket and brought me to the ground.

Before they could take me to jail, they had to take me to the hospital. For the previous two weeks the federal agents had set up a twenty-four hour, four-person surveillance team-with four high powered spotlights-to enforce severe...

I. Introduction

Rarely does a single case, especially out of a circuit court, threaten to undermine an entire area of well-established (and correct) case law interpreting numerous federal statutes. But that is precisely the situation arising in the context of the conversion of federally-granted railroad rights-of-way (FGROW)[1]to recreational trails under the railbanking statute.[2]In 2005, the Federal Circuit, in Hash v. United States,[3]decided the question of whether the federal government retained any underlying interest in FGROW when it made subsequent land patents of the adjoining land. In holding that the government's servient fee interest[4]in FGROW passed to patentees at the time of original homestead patents, the court went against decades of precedents finding that the federal interest in railroad land grants was excluded from subsequent patents.[5]More worrisome, however, is that later courts have interpreted dicta in Hash to compel a finding that any preservation of FGROW for rail-trail conversion constitutes a taking requiring compensation.[6]This decision, in conjunction with a handful of lower court rulings, threatens to seriously undermine this country's commitment to railbanking (the preservation of unused rail corridors for future reactivation)[7]and its support of rail-trail conversions, and creates a windfall for private landowners at the expense of the public lands. And this is not just about hard cases making bad law;[8]these cases misuse history, distort legal principles, and upset well-established precedents in a way that profoundly undermines our commitment to the rule of law.

Since the 1830s, the federal government has granted to railroads a right-of-way across public lands for the location of their roads.[9]Between 1852 and 1862 this right-of-way was granted...