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The standpoint of environmental justice (EJ) has become integral to environmental law in the last thirty years. EJ criticizes mainstream environmental law and advocacy institutions for paying too little attention to the distributive effects of environmental policy, emphasizing elite and professional advocacy over participation in decision-making by affected communities, and adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article shows that the EJ argument, while valid in key respects, ironically contributes to the neglect of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put questions of economic power and distribution, democracy, and workplaces and neighborhoods at the center of environmental politics for many decades before the watershed era of environmental lawmaking, 1970-77. The mystery is why this long EJ movement did not have more effect on the mainstream environmental law that arose in that period. The Article shows that we can understand the omissions of EJ concerns once we appreciate that mainstream environmental law was the last major legal product of “the great exception,” the decades of the mid-twentieth century when, unlike any other time in modern history, economic inequality was declining and robust growth was widely shared. The assumptions of that time, along with key contingent decisions by the Ford Foundation, labor unions, and other early funders produced and environmental law that, more than any preceding environmental politics, really did neglect questions of justice. To give both environmental law and EJ their due, we most both locate environmental law within our new historical understanding of patterns of economic inequality and recognize that EJ is not so much a rejection of environmental law’s history as it is a recovery of an essential and neglected strand.

Library of Congress Subject Headings

Environmental justice, Effect of human beings on nature, Distributive justice, Environmentalism