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

The National Environmental Policy Act of 1969 (NEPA)[1] was one of the first federal environmental enactments of the modern environmental era. Best known for its environmental impact statement (EIS) requirement,[2] and its establishment of the Council on Environmental Quality (CEQ) in the Executive Branch,[3] NEPA has been the basis of numerous lawsuits regarding federal governmental projects that will or may have an adverse impact on the human environment.[4] Despite that fact, however, and notwithstanding the significance of the statute as a catalyst to the study and analysis of environmental trends and the environmental consequences of major federal actions, some of NEPA's provisions have been persistently overlooked by the federal courts and the attorneys who appear before them.

This Article focuses on one such provision: subsection 102(1).[5] Surprisingly (at least to this author), in the thirty-nine years since NEPA's enactment, that brief subsection has been directly applied only six times in judicial opinions.[6]

In Part II of this Article, I will discuss the plain language of NEPA subsection 102(1) and its pithy (and unenlightening) legislative history, and I will identify several important questions that the provision appears to raise. In the following three Parts I will consider each of those questions in more detail, taking account of the (minimal) judicial construction thus far given to subsection 102(1). Those three portions of this Article examine in turn what policies are "set forth" in the statute as a guidepost for regulatory and statutory interpretations, to whom the NEPA interpretation provision applies, and what is meant by the statutory phrase "to the fullest extent possible." Finally, drawing for illustration on the United States Supreme Court's...

It is not enough for the knight of romance that you agree that his lady is a very nice girl-if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much that the poor devil who has no other way of reaching it attains it by getting drunk.[1]

I. Introduction

Outside of law, what we mean when we use the term "property" is by no means self-evident (and may not become altogether clear on closer examination, either).[2] For instance, even in our most unsophisticated explanations, we must admit that the pre-social world may be comprised of things, ideas, and processes, yet it is not comprised of "property."[3] For purposes of this Article, it might suffice to say that property begins as an economic, instrumental, social, or personal construct, and becomes (if at all) a legal label to delineate a hegemony of rights among competing values and expectations. As the particular social values at issue undergo change, and as compromise in the competition shifts, "property" ultimately acquires meaning by attaching legal protection to such values. Although we need not go so far as Bentham's epitaph for property without law,[4] his point is a good one: the meaning of property is contextual,[5] and law plays a special role in determining the confines of property's context.

In an important sense, this is just an acknowledgment that each perspective on property is fundamentally a socially contingent construction competing for legitimacy in law. There are many such constructions, of course, spanning across great divides in process and foundation, each vying...

I. Introduction

The continued impairment of U.S. navigable waters despite more than thirty-five years of federal efforts under the Clean Water Act[1] presents inexorable challenges. By enacting the Federal Water Pollution Control Act in 1972-better known as the Clean Water Act-Congress hoped "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."[2] The Act adopts the basic rule that unpermitted discharges of pollutants from point sources into navigable waters are not allowed,[3] and a permitting system authorizes discharges of limited amounts of pollutants.[4] Although the Act has been successful in addressing many egregious pollution situations, the application of the National Pollutant Discharge Elimination System (NPDES) program to all point sources remains an elusive goal.[5] It is estimated that forty-five percent of our rivers and streams and forty-seven percent of our lakes remain impaired.[6]

To carry out the purposes of the Act, the Administrator of the United States Environmental Protection Agency (EPA) was authorized to prescribe additional regulations for effluent limitations and supplemental best management practices to control pollutant runoff.[7] Pursuant to this statutory authority, EPA sought to reduce pollution from concentrated animal feeding operations (CAFOs), which are large animal producing entities with great quantities of manure that have the potential to adversely affect the quality of nearby waters.[8] Congress expressly included CAFOs in the Clean Water Act's definition of "point source" of pollution.[9] Therefore, a CAFO must obtain a permit before discharging into navigable waters.[10] EPA defines CAFO as an animal feeding operation that meets additional characteristics concerning numbers of animals at a single facility and discharges pollutants, {Continue reading}