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
Richard . Lazarus*
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
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
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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