Why don't we teach environmental justice in the rural West?
I just returned from a three-day trip to the 15th Annual Institute for Natural Resources Law Teachers, held in Stevenson, Wash. along the scenic and culturally rich, Columbia River Gorge. In addition to learning about the distressing influence that European settlers have had on this part of the planet, and indulging in the fantastic research of my peers, my task at the conference was to convince "a bunch of natural resource law professors to incorporate environmental justice into their classroom curriculum." A seemingly overwhelming, but vital, chore.
As an initial matter, the question of whether environmental justice concerns are implicated by natural resources law is not difficult to answer. Anyone who has read the pages of High Country News' A Just West understands that environmental injustices are not restricted to the sitting of pollution sources in urban areas. Environmental discrimination occurs just as often in the context of resource extraction (oil, gas, coal, minerals, etc.) in rural parts of the West.
An obvious, recent example is the Nuclear Regulatory Commission's decision to license more uranium ore mining near Churchrock and Crown Point, N.M. The Eastern Navajo Diné Against Uranium Mining have repeatedly pointed out that the project "could contaminate drinking water for 15,000 Navajo residents" and violates their "human rights" as set forth in the American Declaration of the Rights and Duties of Man. Just last month, the Navajo took the rare step of filing their complaint against the United States with the Inter-American Commission on Human Rights. Their plight is one shared by indigenous and underrepresented communities throughout the world at the hands of resource extraction industries.
Gratefully, none of my peers at the conference argued the point that environmental injustices are a common consequence of natural resource extraction. This is good, because some of the most prominent natural resources law professors from around the country, including those from law schools in Wyoming, Colorado, New Mexico, Idaho, Utah, Nevada, Arizona, Washington and Oregon, attended the Institute. However, when I asked over 40 of these professors if environmental justice was a component of their class, only a smattering of hands went up. As it turns out the more difficult question I faced at the conference was not whether environmental justice should be taught, but why it is not already part of every natural resources law course curriculum.*
I am not sure that there is a bona fide answer to why environmental justice is not a topic of teaching natural resources law. My brief research in preparing for the Institute did not uncover any obvious research on that question. Still, I think there are three potential culprits for this serious oversight in the context of a very important aspect of legal education in the American West and beyond.
First, non-human environmental impacts associated with resource extraction overshadow environmental justice issues. During my three days in Washington, for instance, I was told a little about the impact the construction of the Columbia River hydropower system had on Native Americans; but I learned a great deal about the impact of that system on native salmon fisheries. The same is true throughout the West. What is most often covered by law professors––who only have so much time in a course to teach any particular topic––is the impact mining and fossil fuel development has on endangered species, ecosystems, and watersheds. These environmental issues are important and deserve the attention they are given. But they should not displace a discussion about the environmental injustices these industries also cause in the communities they operate.
Second, to the extent the topic of environmental injustice does arise in the classroom, it is often expressed as a human rights issue. To some extent this makes sense, and environmental justice advocates welcome the idea of a human right to a livable environment. But in the classroom, it is an easy way to race around the topic; human rights, it can be said wrongly, are best covered in an international law or indigenous peoples course.
Third, the myth of disaggregation that dominates so many aspects of natural resources law is a barrier to fully examining environmental injustices associated with these industries. Natural resource industries love to separate out the various aspects of the extraction, production, delivery, and use of their products. Natural resource lawyers talk about upstream, midstream, and downstream operations. In doing so, they seek to shield their client's many operations from excessive liability, and distort the big picture impacts the use natural resources have on the environment and humans alike. Thus, it is effortless to leave out of the discussion on natural resources law the impact the use of these products will have on the communities in which they are ultimately used far "downstream" from their extraction. Communities that are predominately disadvantaged politically, whether urban or rural.
I am not sure whether I convinced any of my peers to incorporate EJ into their classes. But as professors we must fully embrace the importance of a discussion with students––whether in law school, business school, or pursuing a degree in geology--about the true impacts associated with our overreliance on natural resources. Whether downstream, midstream, or upstream those who will be making decisions associated with natural resources tomorrow need to better understand today the impact such decisions will have on both people and ecosystems. Maybe just one of those students will someday reach a decision that makes our world a better place.
*If the topic of environmental justice is discussed at all in law schools, it is usually done so in an environmental law class that focus on the regulation of pollution sources, or in a stand alone EJ seminar, like that taught by Professor Eileen Gauna from the University of New Mexico.
Essays in the Just West blog are not written by the High Country News. The authors are solely responsible for the content.
Michael is an Assistant Professor of Law at the University of Denver's Sturm College of Law, where he directs the school's environmental law clinic. He can be reached at firstname.lastname@example.org
Image of Navajo Generating Station courtesy Flickr user Nathan Rupert.