"Messy and unstructured, relentless and global"
Environmental justice law is unlike most other areas of the law. It may not even be amenable to definition as a single, discrete field of practice. Instead, environmental justice lawyering is as close as we come to modern-day alchemy: lawyers work in alliance with communities to summon forth justice from a shifting patchwork of unfavorable legal precedent, hostile corporate interests, and an obstinate – at best – regulatory structure.
Luke Cole, a chief figure in the development and rise of environmental justice lawyering, and whose untimely passing in 2009 leaves a major void in the national movement, wrote in his article "Environmental Justice and the Three Great Myths of White Americana" (Hastings West-Northwest Journal of Environmental Law & Policy, 1996) that “(i)t is a myth that we need lawyers in environmental justice struggles." He meant that because environmental justice is primarily a political and economic struggle, not a legal one, and because environmental justice issues fall all too easily into a legal chasm between traditional civil rights law and traditional environmental law, litigation for environmental justice is necessarily a piecemeal affair. Cole tells us that, in fact, “in many situations there is no law to protect (a community’s) interest.” Not only do laws not exist to protect the environmental interests of communities of color and poor communities, our fossil fuel-driven national economic portfolio actively relies on the legal system’s zealous guardianship of the literally-toxic status quo.
In the face of entrenched systems of policies and practices that put poor people, indigenous people, and people of color on the frontlines of environmental harm, environmental justice lawyers can nonetheless achieve, and consistently have achieved, significant victories. These advocates act as technicians, working with a range of statutes and regulations – both likely and otherwise – not simply as an end unto themselves, but as means to “building power and securing a place for . . . clients at the negotiating table.” Most importantly, environmental justice lawyers step back from the typical attorney’s position as the lead decision-maker for a legal strategy; true success is only assured when the community leads the process.
Environmental justice lawyering is a frontier practice, integrating traditional legal mechanisms with a progressive social justice agenda, grounded in principles of community sovereignty and moving towards a vision of a truly just and sustainable world. Writes Cole, in "Empowerment as the Key to Environmental Protection: the Need for Environmental Poverty Law" (Ecology Law Quarterly, 1992): “Environmental poverty law is not easy work. And, at the same time, it is the only type of environmental legal work which will truly save the planet. It is up to us.”
* The title of this post comes from Leslie Fields, quoted in the HCN story "The Shot Heard Round the West"
Caitlin Sislin is the Advocacy Director for Women’s Earth Alliance, where she coordinates the Sacred Earth Advocacy Network — a network of pro bono legal and policy advocates in collaboration with indigenous women environmental justice leaders. In her career in public interest environmental law, Caitlin has worked with Natural Resources Defense Council; Earthjustice; the Center for Law, Energy and Environment; and Argentina's Center for Human Rights and Environment.