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2 Brit. J. Am. Legal Stud. 163 (2013)
From Equal Protection to Private Law: What Future for Environmental Justice in U.S. Courts

handle is hein.journals/bjamles2 and id is 165 raw text is: From Equal Protection to Private Law: What Future for Environmental Justice in U.S. Courts? Haydn Davies* Birmingham City University, UK The American instinct to cast controversies into a legal forum has been an American characteristic at least since Alexis de Tocqueville observed in 1835, Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.' ABSTRACT This essay discusses the past and future of the environmental justice movement's efforts to obtain a more equitable distribution of environmen- tal burdens through the courts in the United States. I trace the develop- ment of the movement's litigation strategy from the use of the equal pro- tection clause to recent attempts to invoke public nuisance claims and ana- lyze the reasons for the almost complete failure of these attempts to secure environmental justice. This leads to an analysis of the future role of litiga- tion in the efforts to achieve environmental and climate justice and the procedural, political and conceptual barriers that stand in the way. Finally I present some conclusions as to why litigation represents a second-best approach to environmental and climate justice. CONTENTS I. ENVIRONMENTAL JUSTICE AND THE ENVIRONMENTAL JUSTICE MOVEMENT ...................................164 II. THE RELATIONSHIP BETWEEN THE ENVIRONMENTAL JUSTICE AND ECOLOGICAL JUSTICE MOVEMENTS...............168 III. THE USE OF LITIGATION BY THE ENVIRONMENTAL JUSTICE MOVEMENT ......................................169 IV. THE FUTURE OF ENVIRONMENTAL AND/OR CLIMATE JUSTICE LITIGATION........181 * Centre for American Legal Studies, Birmingham City University. SDarenisburg v. Metropolitani Transport CoLILI'IL 636 F.3d 511,523 (9th Cir. 2011) (Noonan, J., concurring). 163

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