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87 Nw. U. L. Rev. 787 (1992-1993)
Pursuing Environment Justice: The Distributional Effects of Environmental Protection

handle is hein.journals/illlr87 and id is 807 raw text is: Copyright 1993 by Northwestern University, School of Law Printed in U.S.A. Northwestern University Law Review Vol. 87, No. 3 PURSUING ENVIRONMENTAL JUSTICE: THE DISTRIBUTIONAL EFFECTS OF ENVIRONMENTAL PROTECTION Richard . Lazarus* I. INTRODUCTION Environmental protection policy has been almost exclusively con- cerned with two basic issues during the last several decades: (1) what is an acceptable level of pollution; and (2) what kinds of legal rules would be best suited for reducing pollution to that level. By contrast, policy- makers have paid much less attention to the distributional effects, includ- ing the potential for distributional inequities, of environmental protection generally. To be sure, scholars have engaged in considerable discussion of how the costs of environmental controls affect particular industries, and how these costs place a disproportionate burden on new versus existing, and large versus small, industrial sources of pollution.1 But there has been at best only an ad hoc accounting of how the benefits of environmental pro- tection are spread among groups of persons. And, when the costs of pol- lution control have been considered, such discussions have been narrowly confined to the economic costs.2 There has been virtually no accounting of how pollution controls redistribute environmental risks among groups * Professor of Law, Washington University, St. Louis, Missouri. Thanks are owed to Peter Byrne, Luke Cole, Chris Desan, Barbara Flagg, Michael Gerrard, and Chris Schroeder, and also to Tobie Bernstein, Wendy Brown, Richard Delgado, Rachel Godsil, Arnold Reitze, Douglas Wil- liams, and participants in Northwestern University School of Law's faculty workshop for their com- ments on earlier drafts, which much improved this Article. Washington University law students Jennifer Sheehan, Christopher Perzan, and Patricia Verga provided valuable research assistance, but most deserving of thanks is Kevin Brown, Class of 1992, who taught me that this was a topic war- ranting greater academic inquiry. 1 See Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1335-36 (1985); B. Peter Pashigian, The Effect of Environmental Regulation on Optimal Plant Size and Factor Shares, 27 J.L. & ECON. 1 (1984); Peter Huber, The Old-New Division in Risk Regulation, 69 VA. L. REV. 1025 (1983); WILLIAM TUCKER, PROGRESS AND PRIVILEGE: AMERICA IN THE AGE OF ENVIRONMENTALISM (1982) (author contends that environmentalism has unwit- tingly aided big business at the expense of small business and has inappropriately discounted the advantages of human process); Keith Schneider, Rules Forcing Towns to Pick Big New Dumps or Big Costs, N.Y. TIMES, Jan. 6, 1992, at Al; but see Daniel A. Farber & Phillip P. Frickey, The Jurispru- dence of Public Choice, 65 TEx. L. REv. 873, 895-96 (1987) (questioning substantiality of evidence that environmental laws favor larger plants). 2 See infra note 44.

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