Environmental Justice Litigation: Another Stone in David’s Sling

This Article attempts to synthesize some of the lessons environmental justice lawyers have learned, in order to offer a practitioner’s perspective on environmental justice cases. The author’s ambition in setting out these lessons is to allow community groups and attorneys entering the struggle to learn from mistakes, emulate successes, and avoid re-inventing the wheel. Without addressing the strategic and tactical drawbacks of litigation, this Article assumes that a community group has decided to pursue litigation. This Article will only discuss siting cases, as siting disputes have been the primary context for environmental justice litigation thus far. The Article proposes a hierarchy of litigation strategies for attorneys to consider when structuring environmental justice cases, based on the author’s experience at California Rural Legal Assistance’s Center on Race, Poverty & the Environment (CRPE), and that of dozens of other attorneys and community groups around the country. This litigation hierarchy has four tiers: reliance on traditional environmental law claims, unusual environmental law claims, statutory civil rights claims, and Constitutional civil rights claims, in that order. To give context to these recommendations, the Article briefly summarizes the experiences of attorneys alleging civil rights violations in environmental justice suits. Finally, the Article discusses the politics of bringing civil rights claims in environmental justice cases. In the author’s experience, alleging civil rights claims-especially as part of a lawsuit that also uses environmental laws-can be useful in building morale, raising the profile of a community’s struggle and educating the public and government officials about environmental racism