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  • Looking Toward Restorative Justice for Redlined Communities Displaced by Eco-Gentrification

    MJEAL chose to publish Helen Kang’s piece, Looking Toward Restorative Justice for Redlined Communities Displaced by Eco-Gentrification, because it offers a unique analytic approach for analyzing the roots of environmental racism and the appropriate tools to help rectify it. She offers an argument for why restorative justice needs to be the framework and explains how we can accomplish this in the context of a whole government solution. MJEAL is excited to offer what will be an influential approach for environmental restorative justice to the broader activist and academic community.
    • Article
    • Indigenous
    • By Danielle Delaney
    • Volume 24, Issue 2
    • May, 2019

    Under Coyote’s Mask: Environmental Law, Indigenous Identity, and #NoDAPL

    This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal mechanism to challenge the construction of the pipeline distorted the indigenous demand for justice as U.S. federal law is incapable of seeing the full depth of the indigenous worldview supporting their challenge. Indigenous activists constantly re-centered the direct actions and protests within indigenous culture to remind non-indigenous activists and the wider media audience that the protests were an indigenous protest, rather than a purely environmental protest, a distinction that was obscured as the litigation progressed. The NoDAPL protests, the litigation to prevent the completion and later operation of the pipeline, and the social movement that the protests engendered, were an explosive expression of indigenous resistance—resistance to systems that silence and ignore indigenous voices while attempting to extract resources from their lands and communities. As a case study, the protests demonstrate how the use of litigation, while often critical to achieving the goals of political protest, distorts the expression of politics not already recognized within the legal discourse.

  • Permitting Under the Clean Air Act: How Current Standards Impose Obstacles to Achieving Environmental Justice

    Most studies about the environmental justice movement focus on the disproportionate share of environmental burdens minority and low-income populations bear, the negative effects of an unequal distribution of undesirable land uses, and how industry contributes to the adverse impacts suffered by the communities. Unfortunately, trying to prove that an injury was caused by actions of a nearby facility is difficult, and this approach has yielded few legal victories for environmental justice communities. While it is important to remain focused on how environmental justice communities are disproportionately impacted by undesirable land uses, the analysis must shift if the law is to provide any remedy for these communities. Rather than starting at the bottom and focusing on the negative effects that occur under the current system, this Note argues that a different approach should be adopted. Under this new approach the analysis begins by examining the cause of the problems-the statutes and regulations established by Congress and implemented by federal and state agencies. In particular, the Note focuses on how the current framework of technology-based permitting provides facilities with the legal ability to continue emitting dangerous levels of pollution that disproportionately harm environmental justice communities. The Note uses a case study from Michigan to illustrate the problems with the current permitting system. It concludes with suggested changes that could be implemented by states, or at the federal level, to provide adequate protections for environmental justice communities so that the environmental justice movement has a better chance of achieving its goals.

  • The Tribal Sovereign as Citizen: Protecting Indian Country Health and Welfare Through Federal Environmental Citizen Suits

    This Article suggests that federal environmental citizen suits can serve tribal sovereignty interests without presenting the legal risks tribes face when they attempt direct regulation of non-Indians. Section I briefly describes governmental regulatory roles tribes may play in the implementation of federal environmental law and policy. Section II overviews the conceptual and procedural framework for tribal claims as "citizens." Section III argues that in bringing environmental citizen suits, tribal governments exercise their inherent sovereign power and responsibility to protect the health and welfare of tribal citizens and the quality of the Indian country environment. Section IV concludes that, while suits directed at one facility cannot and should not replace comprehensive tribal programs, they offer concrete benefits to tribes without risking adverse judicial decisions on the scope of tribal sovereignty and Indian country.

  • Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives

    This Article examines avenues of redress and pollution prevention for impoverished people of color that flow from Title VI litigation strategies within the larger context of the environmental justice movement. Environmental justice issues can serve as tools with which to question status quo distributive policymaking processes and outcomes. Specifically, this Article concerns itself with practical routes toward increasing distributive justice and democratic efficacy.