Fordham Urban Law Journal
Copyright (c) 1994 Fordham University School of Law
Fordham Urban Law Journal
21 Fordham Urb. L.J. 461
LENGTH: 14099 words
CITY VERSUS COUNTRYSIDE: ENVIRONMENTAL EQUITY IN CONTEXT
A. Dan Tarlock *
* Professor of Law, Chicago-Kent College of Law in the Illinois Institute of
Technology. A.B., LL.B. Stanford University. The research for this Article was
supported by the Marshall T. Ewell Fund of Chicago-Kent, and I warmly thank
Dean Richard Matasar for his usual generous financial support and general
encouragement of all manner of faculty research. I would also like to
acknowledge the research assistance of Ms. Leslie Bender, Chicago-Kent College
of Law, Class of 1994 and Mr. Geoffrey Burg, Chicago-Kent College of Law, Class
... I. Introduction: Environmental Equity and Environmentalism: Separate
Movements in Need of Reconciliation ... For example, mainstream environmental
protection is moving toward more rational risk assessment and management,
pollution source reduction, and ecosystem protection strategies, each of which
potentially undercuts the environmental equity movement's focus on the status
quo. ... Many law suits seek to abate waste sites and industrial pollution
concentrated in non-suburban poor and minority urban and rural areas which were
politically unable to buffer themselves from pollution sources. ... At a
minimum, this history reminds us that we need a vision of a just and
sustainable city to inform the many public policy choices that we make about
environmental protection and social equity in an urban environment. ... Urban
renewal began as a slum clearance and housing program, but it was soon
transformed into a federal and state subsidy program to allow large and small
central cities to fight back against suburbanization. ... Urban renewal
generated an organic reaction which can be described as environmental, but the
antidote has done little to promote social equity. ... V. The Automobile and
Air Pollution: Environmental Quality and Social Equity in Conflict? ...
I. Introduction: Environmental Equity and Environmentalism: Separate Movements
in Need of Reconciliation
Using environmental regulation to promote social equity is not a high priority
of the United States environmental policy.
n1 Our environmental policy has sought to achieve two objectives, pollution risk
minimization and biodiversity protection through regulatory strategies which
move toward allocative efficiency, although efficiency has often been
subordinated to moral imperatives.
n2 Risk minimization and, to a lesser extent, biodiversity protection, have been
pursued through uniform, centrally administered pollution standards and natural
area protection programs. The specific loca
[*462] tion of pollution sources and natural areas was of secondary concern because
the primary justification for most of these programs was the national rather
than the regional or local benefits that they produced.
n3 Thus, it has been easy to assume that the benefits of these programs were
equally distributed across the population. For this reason, the environmental
movement paid comparatively little attention to the distributional effects of
n4 Often when redistribution was considered, the effects of an environmental
policy were assumed to be positive rather than negative. When negative
distributional effects were considered, the focus was on the unfairness to
low-income people who were forced to bear a disproportionate share of the high
costs of environmental protection beyond levels justified by a cost-benefit
Recently, the distributional focus of environmentalism has been broadened to
include the disproportionate costs to poor and minorities who are allegedly
insufficiently protected by environmental regulation. In the 1960s, municipal
service disparities between wealthy and poor areas
n6 led to equal protection suits to equalize urban services within local
governments. This effort to empower
[*463] neglected neighborhoods to improve the quality of their lives
n7 is the immediate root of a newer movement
n8 directed primarily at alleged toxic pollutant sources. The movement to extend
the perceived benefits of toxic pollutant control laws to the poor and
minorities is variously described as the promotion of environmental equity,
environmental justice, or anti-environmental racism.
n9 This Article uses the term environmental equity to describe the movement
because, at base, it is an effort to redistribute resources, not simply to
vindicate existing entitlements.
Environmental equity advocates argue that the pollution control laws against
factories and waste dumps located in poor areas are under-enforced, and
therefore unreasonably expose the poor and minorities to serious, immediate,
and disproportionate health risks.
n11 Market forces, land use laws, and the politics of urban and
[*464] industrial development encouraged the selection of these areas for pollution
sources. Environmental equity is primarily but not exclusively an urban
movement. It is concerned with racial and economic discrimination wherever it
is found, large cities, poor rural communities, and Indian reservations.
However, the major focus is on urban environmental issues because the
movement's primary objective is to achieve
"an equitable distribution of
"healthy' physical environments and equal protection against the ravages of
Environmental equity is not currently integrated into mainstream
environmentalism. Despite common concern with pollution and toxic chemical
exposure reduction, there are significant fundamental differences between
mainstream environmentalism and environmental equity.
n13 The latter comes exclusively out of the civil rights tradition.
n14 The former comes primarily out of the conservation tradition, and has evolved
into a global resource allocation movement much more comfortable with
uncertainty, the pursuit of long term biodiversity benefits in the name of
inter-generational equity, and the application of cost-benefit analysis,
comparative risk assessment and management, and market incentives to decide
acceptable pollution levels.
n15 Environmental equity rests on the constitutional argument that the present
application and enforcement of environmental laws violate the equal protection
rights of those exposed to pollution.
n16 In contrast, mainstream
[*465] environmentalism rests on the New Deal vision of the Constitution as a broad
source of affirmative government regulatory power with few judicially
enforceable limitations on this power.
This Article takes an approach to the problem of environmental equity that is
different from the remedies advocated by the leaders of the environmental
equity movement. The plea that the benefits of environmental protection be
extended to all groups in society is, of course, a legitimate one, but the
movement is too narrowly focused and its aims are too modest. I dissent from
the two central premises held by environmental equity advocates. First, the
movement assumes that judicially recognized and enforced rights will lead to
improved public health. Second, the movement asserts that disadvantaged
communities should adopt a
"Not in My Backyard" (NIMBY) strategy.
n17 In contrast, I argue that the current focus of the environmental equity
movement, important as it is, is too narrow because the legal strategy of the
civil rights movement is largely inapplicable to environmental issues.
Environmental protection is not a rights-based movement. Thus, the judiciary's
role in promoting environmental quality is limited compared to its role in
promoting racial justice through the recognition and enforcement of
constitutionally-based civil rights.
In addition, I argue that the NIMBY strategy is equally short-sighted.
Environmental equity takes current environmental protection strategies as a
given at a time when the science and ethics of environmental protection are
undergoing a profound re-evaluation. For example, mainstream environmental
protection is moving toward more rational risk assessment and management,
pollution source reduction, and ecosystem protection strategies, each of which
potentially undercuts the environmental equity movement's focus on the status
quo. More broadly, the emphasis on applying NIMBY tactics to local communities
adopts the envi
[*466] ronmental movement's strategy of just saying no to all potential forms of
pollution at a time when this reflexive response is being rejected as an unfair
and inadequate response to balancing the need for a wide range of human
activities and host community interests.
Ultimately, the two movements must join together, but it will not be easy to
integrate them because each has fundamentally different value structures. The
current environmental equity movement is only the latest in a series of
twentieth century encounters between advocates of environmental quality and
social justice. Historically, these encounters have arisen in experimental
contexts using different land use forms to draw a line between the city and the
countryside. These experiments are at the root of the environmental equity
movement because they are the product of a long and complex intellectual and
practical tradition of segregating the urban from the rural, to protect the
latter from the former. Contrasting views of the city are at the heart of the
deep division between the two movements. Environmentalists see cities as
parasites on the landscape.
n20 This view reflects an Arcadian preference which has diverted attention from
the unnatural city to the natural environment.
n21 In contrast, environmental equity advocates seek to improve the city, if for
no other reason than this is the only viable option to ameliorate the condition
of those exposed to pollutants.
The gulf between advocates of protecting the countryside and advocates of
improving the lives of poor and minorities is great, but there is a long
history of efforts to confront and address this gulf which is relevant to
current efforts. As a social action movement, environmentalism has never been
totally indifferent to equity and racial issues, despite its anti-urban bias or
at least its indifference to cities. This is the root cause of the tension
between mainstream environmentalism and environmental equity; one which must be
forthrightly addressed if the two movements are to coalesce. At the beginning
of the movement, thoughtful participants recognized the social and economic
consequences of anti-urbanism and potential racism of elite environmentalism,
n22 but mainstream environmentalism did not develop a strong concern for social
equity until the developing countries demanded it as the price for a future
environmental protection dialogue. My approach to the effort to reconcile
mainstream environmentalism and environmental equity is both historical and
Mainstream environmentalism's history explains much of the current gap between
the two movements. Modern environmentalism fuses the rational conservation and
the aesthetic-based preservation movements, major strains of the elite
progressive movement, and the multi-level activism born of the Civil Rights and
Anti-War 1960s. Environmentalism reached its first peak of political power
between 1968 and 1972 when it moved beyond the progressive conservation vision
to a more holistic theory of social and economic order.
In the drive to develop environmentalism as a complete theory of social and
economic organization, a few efforts were made to reconcile environmentalism
with the urban reform agenda and to assess frankly the movement's potential to
justify racial discrimination in housing.
n23 However, the efforts to reconcile the two move
[*468] ments made little progress in the 1970s, in part because environmentalism
crowded out the War on Poverty from the social agenda. For two major reasons,
environmentalists were able to ignore the argument that a conflict existed.
First, many of the
"equity" attacks came from conservatives opposed to the basic idea of environmental
n24 The perception was that equity was being used to mask a broad anti-regulatory,
anti-welfare agenda. Second, air, water, and toxic waste pollution control
programs were justified as consistent with equity because supposedly all
segments of the population benefited equally.
n25 In the 1980s, the environmental movement's energies were directed to counter
the Reagan administration's efforts to roll back environmental protection, and
the Civil Rights Movement fought similar battles. Thus, mainstream
environmentalism was not able to use the major twentieth century city planning
theories which sought to integrate the city and countryside in ways that can be
classified as promoting both environmental and social equity values.
This Article first examines the impacts of these efforts to reconcile
protecting nature with improving our urban areas on our natural and built
landscapes, and then offers a conceptual framework to integrate the two
movements. Next, Part II examines three environmental-social equity visions of
the city. These visions have been used to integrate what we now call
environmental protection and social equity. Both have influenced social equity
and land use policies. These efforts have largely failed by both environmental
and social equity standards, but there are some lessons to be learned for the
future. Parts III, IV, and V describe three applications of
[*469] these ideas. Part III examines the failure of the two visions that led to
"slum clearance" urban renewal and modern state capitalism urban renewal, as well as the
antidote to urban renewal,
"historic" neighborhood organic renewal. Part IV examines the unresolved tension between
open space and environmental protection, suburban land use controls, and the
exclusion of minorities from the suburbs. Part V discusses the equity issues
that arise from applying technology-forcing to solve the problem of the
automobile and urban air pollution.
Part VI concludes by arguing that if environmental equity is to make a lasting
contribution to environmental protection, it must be integrated into current
domestic and international efforts to promote sustainable development. This
concept attempts to bridge the gap between environmental protection and the
need for developing countries to expand their economies.
n26 We must develop a vision of sustainable cities.
If the environmental equity movement is to achieve its objectives, it must
coalesce with mainstream environmentalism for two reasons. First, environmental
equity advocates need the support of mainstream environmentalism. Mainstream
environmentalism's continuing emphasis on administrative discretion limits the
power of courts to police the distributional consequences of the regulatory
programs enacted to promote environmental quality. Relief must come from
existing administrative programs, not the courts. Second, most ecologists now
support the non-equilibrium paradigm which sees humans and natural forces
continuously interacting within the landscape.
n27 To maintain its future legitimacy, environmental law must put all humans back
into the landscape.
II. Environmental Visions of the City
Three major twentieth century city planning theories have influenced both
urban public policy and the private market. Each of these theories has tried to
reconcile environmental quality and social equity, but too often their
application has produced the opposite result. They have been applied to
acerbate the difference between the city and countryside by reenforcing the
Arcadian anti-urban bias of the environmental movement. Pollution concentra
[*470] tion in older urban areas and in rural
"targets of opportunity" is a legacy of the land use patterns established in nineteenth century
industrial cities acerbated by racism
n28 and poverty.
Our current pattern of
"green" commuter suburbs in the inner metropolitan rings and edge cities further out
has buffered many people from the pollution concentrations that the
environmental equity movement seeks to eliminate. Many law suits seek to abate
waste sites and industrial pollution concentrated in non-suburban poor and
minority urban and rural areas which were politically unable to buffer
themselves from pollution sources. These communities have basically been
invisible in national pollution standards because we measure regional average
rather than specific community levels. Although the environmental movement is
not primarily responsible for this land use pattern, it results from market
responses to the preference for autonomy and mobility. However, this pattern
has been reenforced by applying and adapting three
"environmental" theories of the city: (1) the monumental or beautiful city, (2) the Garden
City, and (3) Le Corbusier's Ville Radieuse, along with its American cousin
Frank Lloyd Wright's Broadacre City.
A. The Arcadian Tradition in Science and History
Even though the glory of cities is the great story of western civilization,
environmentalists generally do not like them: cities disrupt the natural
landscape and contain people who pollute. Environmentalists' dislike of the
city is a sub-set of a long anti-urban intellectual tradition in this country
n29 which can be traced to early reactions against the industrial revolution.
Arcadian nostalgia has been a profound influence on environmental science and
n30 The treatment of the urban ecosystem in ecological science literature
illustrates the Arcadian, environmental view of cities. Environmentalists think
of ecosystems in terms of Aldo Leopold's southern Wisconsin Prairie,
n31 a wetland, an exotic coral reef, or tropical rain forest. These supposedly
"good" ecosystems because they perform life regulating and pollution prevention
functions in contrast to the city which is a
The presentation of the urban ecosystem in ecology illustrates its traditional
"marginalization" of the city. Eugene Odum's classic ecology text
n32 classifies cities as heterotrophic (other nourishing) ecosystems and describes
"a parasite of the rural environment" because
"as currently managed, the city consumes vast quantities of resources but
produces little or no food or other organic materials, purifies no air and
recycles little or no water or inorganic materials,"
n33 and produces a number of toxic and other wastes. This view of the urban
ecosystem was legally reflected in several early outrageous National
Environmental Policy Act (NEPA) suits which in effect categorized the potential
movement of minorities into white neighborhoods as a form of pollution which
needed to be addressed in an environmental impact statement.
The Arcadian tradition exerted a powerful influence on post-World War II urban
planning, and the environmental movement
[*472] absorbed this influence in the late 1960s. Urban living has long been the
reality for most Americans, but it has been an ideal for far fewer of us.
Affluent urban dwellers have supported environmentalism, but their political
energies and financial resources were often devoted to protecting and enhancing
the suburbs and rural areas, not our cities. Samuel P. Hays, the leading
historian of the environmental movement's emergence after World War II, has
"the . . . contrast between the city and the land beyond it lay behind much of
the environmental movement."
n35 It is only now that we are coming to see the city as an ecosystem worth caring
Hays explains the modern American environmental movement as the result of the
post-World War II suburbanization and the greater use of rural areas for
n36 Wealthy people first began to flee urban pollution to arcadian retreats after
the street car and inter-urban railroads made the modern suburb possible.
n37 These early suburbs were closely linked to central cities, but the new
"edge cities" of the past twenty years have created independent urban concentrations around
major metropolitan urban areas.
n38 Post-war affluence allowed many people to indulge their tastes, deeply rooted
in the American experience, for
"clean" rural living or leisure, and it brought them in closer contact with
governmental efforts to alter these areas. Battles over dams in scenic areas
and interstate highway locations trained the first generation of environmental
activists and enshrined undisturbed nature as the ideal of environmental
protection at all levels of government and at all geographic scales; a 100 unit
subdivision is as much a threat as the degradation of the Greater Yellowstone
B. Beautifully Green, Socially Equitable Cities: A Failed Vision
One of our most profound students of the city, the late city planner Kevin
Lynch, identified three forms of cities that have emerged
[*473] from the interplay between evolutionary forces and the human imagination: (1)
the cosmic or magical city, (2) the standard form or machine city, and (3) the
n39 This classification reflects both ideal forms advocated by architects,
planners, and utopian reformers, and the practice of urban development by
governments and the market. The three theories are pre-environmental in the
modern sense because they focused on the landscape as an aesthetic resource, in
contrast to the current more complex scientific conception.
n40 Each of these theories has influenced urban settlement patterns in this
country and throughout the world. In their utopian forms, each addresses the
issue of social equity, sometimes perversely, and each can be described as
n41 Each was formulated or used to counter the reality of the industrial
revolution by tying the countryside to the city, but each contributed to
widening the gap between country and city and to the current demand for
The theories can be classified as
"environmental" because each posited a definite relationship between the city and nature. The
"environmental theory of a city" is ambiguous because it means different things to environmentalists and to
urban planners, and each definition leads to substantial and often
n42 Environmentalists define
"environment" as the natural environment, and focus on its destruction by urbanization.
Urban planners have a much broader definition of the environment; the concept
"not just the physical but the social, cultural, and economic environment."
n43 I use environment not only in the sense that environmentalists use it, the
optimum physical land
[*474] scape, but also the way urban planners use it, who shall occupy the landscape.
1. The City Beautiful Movement: America's Cosmic Cities
The cosmic city is the oldest historical form, but it continues to exert a
powerful influence on city planning. Beijing in the Ming and Qing dynasties or
Xi'an (Chang'an) in the T'ang dynasty are examples of the cosmic city.
n45 One would think that cosmic forms, associated with autocratic empires, would
be ill-suited to a democratic, technological society. Ironically, however, the
imperial city, in its Roman manifestation, provided the inspiration for The
City Beautiful movement in the United States as our first effort to tame the
new industrial-commercial city built on a standard grid form.
n46 This movement was an effort to replace the polluted city that spread from the
exponential and largely unregulated post-Civil War boom with a clean,
functional, and stately city to compete with the grandeur of Europe.
We do not conventionally think of The City Beautiful movement as an
environmental theory; it did not attempt to integrate the city and nature in a
harmonious way. In fact, in the cold light of modern reappraisal, the
environmental and social equity impacts of American imperial cities is
overwhelmingly negative. As William Cronon recently demonstrated in his
prize-winning Nature's Metropolis: Chicago and the Great West,
n48 Chicago's wealth ability converted the crops and animals raised in the
midwest, as well as the land itself, into abstract commodities. Also, as Cronon
has written about the White City constructed for the 1893 Columbian exposition,
it presented a vision of urban life at its noblest and most civilized
"by segregating urban and rural utopias from the economy and environment that
The City Beautiful has been equally criticized for its insensitivity to social
equity. This is a fair but ironic criticism. The City Beautiful movement was an
integral part of the progressive era's search for the balance between
market-driven industrial production, the 18th century Jeffersonian democratic
ideal, and social justice.
n50 In the end, however, The City Beautiful movement either ignored the urban poor
n51 or worse, subordinated social equity to aesthetics. For example, urban planers
have celebrated and damned Chicago's partial implementation of the 1909 Burnham
Plan because it relied on a veneer of Parisian tree-lined boulevards and parks
to ameliorate the reality of unsanitary urban life.
2. The Grid
The standard form city is, of course, characteristic of the grid pattern of
American urban development.
n53 From an environmental standpoint, the form is basically negative because it is
designed to accept the land use patterns dictated by the market. It feeds the
endless decentralization decried by environmentalists. From a social equity
standpoint, the form can be neutral; it is positive because it can encourage
social or racial segregation to accept integration, but it is also negative
because it separates jobs from housing. However, as the discussion in Section V
indicates, the plasticity of this form makes it adaptable for sustainability as
well. The most interesting environmental feature of the grid pattern is that
dissatisfaction with the form stimulated efforts to replace it with theories
which more sharply defined the city and countryside in order to preserve the
3. An English Village or Garden for Everyone
The preference for the cosmic or monumental city and the monotony of the
standard form city has long troubled planners because it seemed to reenforce
the worst environmental and social costs of the industrial era. Planners
explicitly sought an alternative which integrated urban concentrations with the
countryside in a
[*476] vain attempt to foster universal individual autonomy and happiness. The
results were various organic theories of the city.
n54 The modern origin of the organic theory of the city, which had a great
influence on city planning in the 1920s and 30s, is the Garden City movement in
The Garden City movement sought to advance social justice by using the English
village model surrounded by common fields to construct new towns for industry.
New town planning had a brief run during the 1930s and again in the 1960s, but
the Garden City movement's most powerful influence was on suburban development.
American planners have been attracted to the organic theory of the city because
it replicated the New England village, and they have tried to impose this model
on suburban development. The Garden City idea of row or townhouses connected to
common open space became the philosophical underpinning for Planned United
Developments which began to flourish in this country in the late 1960s.
The organic theory of the city has also been the basis for feeble attempts to
incorporate social equity into environmental preservation through a utopian
craft alternative to mass production. The rival American theory to the Garden
City is Frank Lloyd Wright's prairie technological American alternative, the
high rise in the countryside. Wright envisioned his Broadacre City as an
economically and socially diverse city where democratic values would flourish.
The basic idea was to build slender towers surrounded by low density housing
and farms. The vision was environmental:
"city building in the new city will stand there free in its own greenery or lie
long, flowing lazily and low on prairie levels . . . . At one with environment."
n57 Broadacre City is now widely claimed as the model for the modern edge city,
although the mass, scale, and social segregation of these cities is the
opposite of what Wright sought to achieve.
This discussion demonstrates that the modern environmental movement is not the
first point of contact between what we now characterize as environmental
quality and efforts to promote social justice. In fact, the current equity
movement has deep roots in the late nineteenth and twentieth century efforts of
urban planners to reconcile the industrial city with nature through ideal
visions of the urban form which promoted social equity. Unfortunately, as these
planning visions were adopted by the market, social equity concerns were
filtered out, and the resulting population deconcentration acerbated many
environmental equity issues. These efforts are important reminders that there
is a long history of the search for a sustainable urbanism as well as important
object lessons on how not to design urban settlements. At a minimum, this
history reminds us that we need a vision of a just and sustainable city to
inform the many public policy choices that we make about environmental
protection and social equity in an urban environment.
III. Urban renewal: A Failure of Both Equity and Efficiency
Post-World War II urban renewal in the United States and Europe is a classic
illustration of the adverse environmental and social consequences of using a
flawed aesthetic and philosophical theory for urban development. Urban renewal
was the major New and post-New Deal effort to combine the monumental city with
social equity. From the Housing Act of 1933 through the 1970s, the United
States engaged in a massive effort to subsidize the renewal of the core of the
nation's cities, both large and small. The government replaced
"slums" with new high rises and plazas in the name of urban aesthetics and of social
n58 In both Europe and the United States, urban renewal is now widely regarded as
a failure of both vision and implementation. Projects have been denounced as
socially inequitable, economically inefficient, aesthetically dehumanizing, and
politically undemocratic. This is a much told story,
n59 and I want only to touch on the most important lessons of the failure for
future efforts to develop sustainable cities.
Urban renewal began as a slum clearance and housing program, but it was soon
transformed into a federal and state subsidy program to allow large and small
central cities to fight back against suburbanization. Using state capitalism to
promote private growth was first applied during the New Deal to redress the
regional imbalances between the rich East and Middle West and poor South and
West during the New Deal, and then was applied to cities after World War II.
n60 The legal mechanism for urban renewal was public assembly of land followed by
resale to private developers, primarily to prevent
"holdouts" from jeopardizing the planned new development. In retrospect, urban renewal
illustrates two major failures endemic to our legal and political institutions.
First, urban renewal subsidies intended for low and moderate income groups have
a tendency to migrate upward not downward. Urban
"elites" were quick students of the benefits of state capitalism, and saw that public
money could be marshalled for largely private gain.
n61 Second, it is difficult to counter this migration through constitutional
adjudication or legislation.
In the 1930s, the French architect Le Corbusier articulated the philosophical
and aesthetic basis for urban renewal. Le Corbusier used the machine theory
form to promote communitarian ends, and the machine theory reached its zenith
with Le Corbusier's Ville Radieuse. In the 1930s Le Corbusier's architectural
ideas attempted to produce a new synthesis between the city and nature; his
high density, high rise cities surrounded by open space were designed to bring
nature into the city.
n62 Corbusier's ideas have had
[*479] a great influence in the United States and, according to many, have
contributed to the decline of American cities. Ironically, La Ville Radieuse
was adopted as an environmental idea.
"The Radiant City appealed to all the latent Arcadian yearnings in our culture.
It was an old romantic idea - going back to William Penn - of combining the
urban and rural, of living close to nature, of creating a city of buildings in
Justice William O. Douglas incorporated Le Corbusier's vision into Fifth
Amendment jurisprudence, but unlike civil rights, the Court declined to monitor
its implementation through public and market forces. The constitutional theory
of urban renewal shows that courts can validate efforts to improve the physical
and social environment, but can exercise little control over the way that the
programs are implemented. Urban renewal's constitutionality was heavily debated
because much of the land would ultimately be returned to private ownership,
thus violating the Fifth Amendment limitation that property could only be
condemned for a public use, which was understood to target property owned by a
public entity or a regulated utility. The law, along with the then supporting
architectural theory, merged in Justice Douglas's opinion in Berman v. Parker,
n64 which upheld urban renewal's constitutionality. His expansive, much praised,
and cited language echoes Le Corbusier's vision of the modern city:
"It is within the power of the legislature to determine that the community
should be beautiful as well as healthy, spacious as well as clean,
well-balanced as well as carefully patrolled."
In retrospect, these words are hollow because the opposite occurred. The urban
renewal projects of the 1950s and 1960s created urban wastelands; too many
empty, unsafe public spaces, and many projects of dubious social utility. More
profoundly, the urban renewal experience shows the law's limited role,
especially constitutional law, in policing programs. Land use and environmental
law have basically served to implement the different visions of the city and
country produced by the interplay between the market and the political process
because no counter vision is contained within either constitutional or common
law. Courts have rejected all ar
[*480] guments to police state capitalism.
n66 In addition, the problem of judicial control over environmental programs
regardless of their social equity impacts is even greater because the values
sought to be furthered by environmental and land use law are outside the
western legal tradition, which has steadily expanded the concept of human
dignity, but not the protection of the natural environment. For this reason,
the laws that control both the natural and the built environment are positive
rather than rooted in a constitutional or common law tradition. They are the
product of specific legislative efforts to implement an idea to remedy a
perceived problem, and courts are basically limited to three roles in this
process. Courts can, as they often have, validate a legislative vision, hold
that vision unconstitutional, usually under the Fifth Amendment, or police the
decisionmaking process. Courts cannot do much to counter the perversion of an
As urban renewal projects mounted, so did the criticisms. Ultimately, these
criticisms ended federal subsidies, but not urban renewal generally.
Sociologists discovered that many slums were actually cohesive neighborhoods,
that these neighborhoods or communities were generally not recreated when the
residents were relocated, and that the islands of plazas and high rises that
urban renewal produced were unsafe and inhumane spaces. Economists criticized
many projects as both inefficient and inequitable subsidies, and as ineffectual
attempts to stem the decentralization of urban areas.
n67 Urban renewal has now largely been rejected both in the United States and
n68 because the dismal housing blocks that now ring European cities broke the
crucial cognitive ability of people
"to recognize and understand the structure of their urban environments."
n69 A few sunbelt cities and other places such as Indianapolis, which assembled
private and public capital, kept the tradition alive in the 1980s. However,
these efforts have been criticized as state socialism, because the subsidies
continue to benefit the powerful and wealthy, although they can equally be
characterized as the latest chapter in the long tradition
[*481] of blurring the line between public and private in times of rapid social
The urban development strategy which replaced Corbusian urban renewal in many
cities illustrates the lack of an effective basis of judicial control over the
use of urban space. Urban renewal generated an organic reaction which can be
described as environmental, but the antidote has done little to promote social
n71 In the 1960s, Congress strengthened the relocation process in an effort to
help those displaced by urban renewal. Ultimately, the fierce protests against
the destruction of older buildings turned historic preservation from a small
movement focused on individual sites of historic events and small,
architecturally unique neighborhoods, to a major economic force. Federal tax
subsidies encouraged renovating older buildings, and older, relatively
well-constructed, and safe areas around the center of many cities began to
"gentrification." This promoted sustainability but continues to draw sharp criticism from social
Ironically, historical preservation applies ecological principles to the urban
environment because it views the eclectic architectural mix of styles produced
by the nineteenth and early twentieth century market as a
"natural successional climax" which should be sustained by public regulation and subsidies just as we try to
maintain natural ecosystems against human-caused stress. However, proponents of
social equity read the story of historic preservation as yet another example of
Arcadian urban theories to produce economic and racial discrimination:
Shifts in the aesthetic ideology of urban planners of the 1970s and 1980s
helped produce the devastating phenomena of abandonment,
gentrification, and displacement in urban areas of the U.S. The aesthetic and economic
"historical ambiance" had extremely negative consequences for poor residents of urban neighborhoods,
as much wealthier and better educated residents began desiring neighborhoods
"historical ambiance." Ambiance-seekers drove prices upward in these neighborhoods, unleashing the
twin scourges of speculation and abandonment on these areas....
The privatization rhetoric of the Reagan era valorized
gentrification as a free-market solution to urban decay. It celebrated trickle-down economics
and supply-side theory allowing policymakers to feel that they were helping
low-income urban residents by supporting the creation of new luxury housing in
the suburbs. At the same time, many of these policymakers were busy dismantling
the foundations of low-income housing policy on federal, state, and local
IV. From the Worker's Village to Edge Cities and Gated Communities
Open space preservation exposes the sharpest tension between social equity
proponents, including the environmental equity movement and environmental
quality proponents. Open space has shaped the American experience, first as a
terrifying obstacle to be civilized, and then as an ideal state of nature to be
preserved. This open space ideal spurred our widely emulated programs in
national park and forest management and was carried over into post-World War II
suburban land use policy. There is, however, a less attrac
[*483] tive side to open space preservation. It has served to exclude poor and
minorities from preexisting land uses
n74 and to limit housing opportunities in the suburbs. Roughly speaking, the
monumental spaces created through urban renewal scattered the poor and
minorities within cities. As a result, the pursuit of suburban open space made
access to the suburbs more difficult for them and many others further up the
economic and social scale, regardless of race.
The organic city sought to deal with the problematic relationships among
housing density, social justice, and environmental protection by creating
modern urban villages surrounded by green belts. The idea of environmental
harmony in the organic city - be it Garden or Broadacre City - provided
powerful moral and legal rationales for open space preservation, despite
arguments that many land use policies designed to further this goal frustrated
social equity. Too often, however, the results subordinated social equity to
dubious environmental values. Open space can be too broad a concept to control
its use by suburban communities.
Traditionally, open space in Europe has had a more defined meaning as there is
a careful delineation between cities and the surrounding countryside.
n75 In contrast, in the United States the concept applies to everything from
terraces in a planned unit development
"open space" calculation to urban greenbelts, and all forms are pursued with equal vigor.
This vague concept has resulted in promoting low-density suburban development.
It has provided the basis for an unsuccessful social equity attack on suburban
zoning, which is one of the forerunners of the current environmental equity
In the 1960s, large lot suburban zoning was attacked as unconstitutional
because it excluded the poor and minorities from the suburbs. After the Supreme
Court held that wealth is not a suspect
[*484] class and housing is not a fundamental right,
n76 the federal constitutional attack withered.
n77 In response, a few state courts developed state anti-exclusionary doctrines.
Suburbs countered these actions with growth control ordinances and advanced
many environmental justifications for preserving open space. Environmentalists
quickly realized that the
"withdrawal" of land from the market could drive up regional housing prices, a connection
which has now been well documented,
n78 and hoped to counter this by constructing high-density low- and
moderate-income townhouse developments.
n79 Instead, we have modern medieval fortified villages walled off from both
nature and humanity.
Environmental justifications help to insulate many low density zoning regimes
from attack. For example, in Mt. Laurel II, the New Jersey Supreme Court held
that communities do not need to meet their fair share obligations in areas
designated for environmental protection.
n80 Similarly, emerging biodiversity preservation efforts in many areas of the
country are a new and more powerful rationale for open space preservation.
n81 To reconcile development with the mandates of the Endangered Species Act,
communities are formulating habitat conservation plans which have the potential
to withdraw large amounts of land from development. As with exclusionary
zoning, to date courts have brushed off arguments
[*485] that such programs violate state constitutional or statutory affordable
Pursuing open space preservation continues to be a problematic objective from
both social equity and environmental perspectives. Open space preservation
remains central to biodiversity protection as a core environmental value, as
well as to most urban planning visions. However, existing open space efforts
illustrate the relative inability of the organic or Garden City vision of the
landscape to shape regional growth patterns. Cities have pursued a variety of
growth management programs to either control the rate of growth or to confine
it within tightly drawn boundaries. These programs have often increased the
cost of housing and encouraged leap-frog developments.
V. The Automobile and Air Pollution: Environmental Quality and Social Equity in
One of America's greatest global exports has been the automobile culture.
Automobiles have become the preferred method of transportation in North America
n84 as well as in urban areas in developing countries. In the United States, the
car triumphed over rail transportation before World War II because it was more
responsive to consumer demand,
n85 and automobile travel
n86 was generously subsidized by the federal and state governments. The
automobile's meaning and its proper role in modern
[*486] society is the subject of intense debate among students of urban life.
In brief, the benefits of personal mobility and autonomy must be balanced
against the environmental, energy, and social equity costs. In the twentieth
century, the automobile's positive aspects, flexibility and autonomy, were
considered to outweigh the negative ones. On the other hand, for
environmentalists, the costs outweigh the benefits. Throughout this century,
the United States, in contrast to Europe and Japan, has pursued an energy
policy designed to make energy as cheap as possible. The concern with urban air
pollution and then the OPEC-generated energy crisis forced us to reevaluate the
benefits of our reliance on the automobile for the bulk of urban and regional
transportation. However, the preference for automobile travel is too deeply
embedded in our culture to attempt to fundamentally change its position in the
n88 As Stewart Udall, Secretary of the Interior in the Kennedy-Johnson
administrations and a founder of the modern environmental movement, has
"perhaps one of the most fateful domestic environmental and social problems in
the next decade ... is the circumstance that this country's automobile culture,
as it exists, today is not sustainable."
n89 We have tried to make cars less polluting and more fuel efficient,
n90 laudable objectives in and of themselves, but we have just begun to confront
the social equity and deeper environmental problems with this strategy.
Three environmental solutions to the automobile have been attempted. We have
tried to (1) replace it with public transportation, (2) tame it through the
urban form, and (3) mandate cleaner engines through technology-forcing, with
modest driving reduction strategies as a back-up. The first two failed both by
their own terms and by the broader criteria of social equity. The success of
[*487] the third is also problematic. Moreover, there is a basic tension between the
current environmental equity movement and proponents of sustainable urbanism.
The urban poor and minorities are victimized by both our automobile culture and
our efforts to make it sustainable. To reduce vehicular air pollution, cities
are building new, linear public transportation lines and considering high
technology solutions to reduce the number of work-related vehicular trips.
Unfortunately, these neither promote environmental sustainability nor social
Public transportation is not a solution to air pollution. Studies show that
costly public transportation systems only produce marginal improvements in air
n91 These systems do not respond to the needs of the poor and minorities who are
often the most automobile dependent, except in a few large cities with
comprehensive public transit systems.
n92 Public transportation often continues the pattern of connecting middle and
upper middle class people with the city. For example, a center city people
mover built in order to revive downtown Detroit, has hurt inner city residents.
To pay the mounting operating deficits, inner city bus service has been cut.
Thus, it is not surprising that representatives of the poor and minorities have
been among the most vocal opponents of controlling air pollution by reducing
Town planners have long seen the car as incompatible with ideal - European -
city forms. In an early effort to limit automobile use, pre-environmentalists
planned suburban towns that separated people and cars. Clarence Stein and Henry
Wright's partially built Garden city in Radburn, New Jersey attempted to
harmonize people and the car using under and overpasses and cul de sacs that
deposited cars at the rear of houses or superblocks; the front entrance faced
on common greens. Radburn has been hailed as a model community,
n93 and it has been widely emulated in diluted
[*488] form. However, a critic has recently characterized it as
"basically a last-ditch effort to protect the Victorian suburban community from
destruction by the automobile."
n94 Radburn's idea, however, continues to live in California. The hottest idea in
California's perpetual urbanization is the neo-traditional transit oriented
community. Settled by adventurous and freezing midwesterners, who created an
indigenous, Spanish-Roman culture and architecture,
n95 developers in California are now building Midwestern cities with houses facing
the street, front porches and garages in the alleys.
Because urban planning has been unable to cope with the industrial
revolution's separation of home and work, we have relied on technology-forcing
strategies to reduce air pollution. Our major air pollution strategy has been
to mandate less polluting engines and to wean people from commuting in single
occupant vehicles. The federal Clean Air Act has consistently followed a
strategy of mandating technology-forcing solutions with Congressional waivers.
Automobile air pollution was one of the first major environmental problems to
be identified, and it has been at the heart of modern environmental regulation
since the Clean Air Act in 1970. It took until 1957 to identify conclusively
internal combustion as a major source of urban air pollution.
n97 At a time when engineers dominated the environmental agenda, the remedy was
straight-forward; improve engine technology. Documented evidence that the
industry suppressed air pollution technology strengthened Congress's resolve to
solve major air pollution through technology-forcing standards.
Technology-forcing remains the major remedy for automotive air pollution
because the compliance costs are distributed among all purchasers in a highly
competitive global industry. As the Montreal Protocol on Protection of the
Ozone Layer indicates, it is easier to regulate a concentrated, technologically
sophisticated industry than to modify human behavior, which would require sac
[*489] rificing individual autonomy.
n98 The Clean Air Act's evolution illustrates this bias in favor of
Air pollution is a combination of mobile and stationary source pollution.
Subject to EPA oversight, Congress has delegated to individual states the power
to decide how stationary sources will comply with the Clean Air Act and, more
importantly, how much behavior modification is necessary in addition to new
technology. Transportation controls have always been part of the Clean Air Act,
but the political controversies that immediately surrounded their
implementation led Congress to restrict their use.
The Clean Air Act's treatment of the automobile has evolved from an effort to
apply technology to eliminate a problem to an endless process for deciding how
much air pollution will be eliminated and when, if ever, this should occur.
Congress has basically set stringent engine emission reduction limitations, but
has delayed their implementation.
n100 The 1990 Clean Air Act Amendments continued this pattern. Congress established
a detailed control scheme to attain the primary air quality standard for ozone,
n101 a secondary pollutant formed by the reaction of automotive and
stationary-source volatile organic compounds and nitrogen oxides.
The technology-forcing provisions have produced tangible improvements in urban
n103 but a recent review of Los Angeles' efforts to control air pollution reveal
that our current
[*490] approach is neither fair nor sustainable.
n104 Still, in 1991, federal standards for one or more pollutants were exceeded in
the Los Angeles basin on 184 days, and documented evidence of increased
respiratory disease and cancer risk continues to accrue.
n105 A glance at a map comparing ozone reduction in the basin shows that the
greatest gains occurred in affluent coastal areas, and that the worst
concentrations are in inland areas where the poor and minorities are
concentrated, although many wealthy suburbs close to the San Gabriel Mountains
are located in this area. California's ambitious public transportation efforts
can only prevent air pollution from getting worse.
As we reach the limits of feasible improvements in the internal-combustion
engine, technology-forcing strategies are being augmented by transportation
control management. Since 1970, Congress has used this strategy to back-stop
tailpipe and fuel standards. Transportation control management means putting
fewer cars on the road and putting more people in a single vehicle or on public
transportation. In major urban areas, the political controversies surrounding
efforts to reduce automobile use have stymied EPA's efforts to meet air quality
standards. In 1990, Congress responded to two decades of marginal
implementation of transportation control measures (TCMs)
n107 by increasing their role in meeting urban carbon monoxide and ozone standards.
The 1990 Clean Air Act Amendments give the EPA wide discretion in suggesting
transportation planning processes and providing
"information" about a wide variety of methods to reduce vehicular use.
n108 Congress went further than it has in the past in confronting the issue of
personal mobility by requiring that by the end of 1993, employers in severe and
extreme ozone nonattainment areas (Los Angeles) are required to implement
programs to reduce the number of vehicle-related work trips.
n109 However, existing evidence shows that ride reduction programs have marginal
effects on air quality, and that stepped up vehicle maintenance and the subsi
[*491] dized replacement of older cars are the most cost-effective strategies
available for reducing air pollution.
The future of urban air pollution control efforts is uncertain. In places such
as Los Angeles, there is intense opposition to paying the costs of additional
n110 This may relax some of the existing tension between social equity and
environmental quality, but it merely continues the status quo. However, efforts
to freeze existing air pollution control efforts only pass on to future
generations both the increasing costs of airshed degradation and the social
equity problems of urban deconcentration without an adequate transportation
VI. Sustainable Cities: The Future Ideological and Legal Challenges
The history of efforts to promote both environmental protection and social
equity offers few positive lessons for the future. To end on a more optimistic
note, however, international environmental law does provide a useful approach
to this issue. The tension between environmental protection and social equity
has been faced more squarely in international environmental law. Nation-state
sovereignty has allowed developing nations to assert a right to develop to
counter arguments that developing nations owe both present and future
generations strong environmental protection duties.
n111 To ease this north-south tension, many nations have embraced the concept of
Sustainable development is a political-economic idea that is designed to
accomplish two objectives related to the goals of both the environmental equity
and mainstream environmental movements.
n112 This principle attempts to bridge the north-south debate about the role of
environmental protection in developing economies by linking environmental
protection and the elimination of poverty. In short, it places humans back into
the environment. The influential 1987 Bruntland Commission report concluded,
"A world in which poverty and inequity are endemic will always be prone to
environmental and other crises. Sustainable development
[*492] requires meeting the basic needs of all and extending to all the opportunity
to satisfy their aspirations for a better life."
n113 The major problem with developing countries is that almost all incentives are
biased toward rapid, low-cost, natural resource exploitation. In contrast,
sustainable development attempts to correct the biases against traditional
ideas of efficiency in present consumption by replacing those ideas with an
ethic of long run efficiency.
Sustainable development can be adapted to the environmental equity movement
because it marries the idea of social equity with a broader idea of
environmental quality. Recent environmental equity advocates express a similar
idea when they argue that the movement must aim beyond the unequal service,
equal protection model. The revitalization or
"recivilization" of cities has emerged as a primary focus of the movement.
n115 For the environmental equity movement, adopting sustainable development as a
goal - open-ended and contradictory as the concept currently is - has the
advantage of creating a conceptual parity between human-dominated ecosystems,
"natural" systems. This is a fundamental ideological shift for environmentalism because
it follows that cities should be integrated into the countryside, not isolated
from it. Thus, humans must be recognized as integral landscape actors rather
than unfortunate aberrations.
There are, however, at least three different conceptions of the
urban-environmental relationship embedded in the theory of sustainable urbanism
which must be carefully delineated because only one is useful for the future.
The three theories are (1) the romantic environmental, (2) the global
environmental, and (3) the technological adjustment. The first is the
traditional mainstream environmental response and, as I have previously
discussed, has generally sought to confine the city to save the countryside.
The second is a much newer response and seeks to promote sustainable
development by moderating urban demand in the north for southern commodities
such as tropical hardwoods, and by linking municipal policies to global
environmental ones. The third refers to a cluster of utopian planning theories
that functioned into the 1960s which
[*493] sought to remedy the dehumanizing aspects of the industrial revolution through
The second theory, the global environmental, has the most promise for the
future because it can be integrated with sustainable development, which
recognizes that promoting social equity is part of the cost of environmental
protection. Sustainable development is an ideological challenge for both
environmental equity and mainstream environmental proponents. Each must give up
cherished political and legal objectives and deeply held prejudices. In
addition, each must confront issues that are in the immediate scope of both
movements. Proponents of environmental equity must give up the idea of a
primarily constitutional reform movement and must become active participants in
all environmental policy debates, not just those dealing with the reduction of
exposure to toxic chemicals. Similarly, the mainstream environmental movement
must, as modern ecology is doing,
n116 abandon the distinction between human dominated and natural ecosystems. The
collapse of the human and non-human ecosystem is not, of course, a substitute
for on-going efforts to promote racial equality and social equity, but it does
remove an impediment to achieving these objectives.
Both movements must confront the uncertain relationship between the industrial
urban form and post-industrial cities. The model of an urban manufacturing
center influencing smaller urban and rural regions around it has broken down.
n117 Sustainable urbanism is a much more complex and multi-faceted theory than
other urban theories because the focus is much broader than the city's physical
form and the social consequences of that form. There are few existing models to
follow. Urban sustainable development principles are being developed within the
European Community. Current cities are not sustainable because they stress
global resource stocks and contribute to the degradation of global commons. To
become environmentally sustainable, cities must link their transportation,
resource consumption, and waste manage
[*494] ment policies to global concerns, such as ozone depletion and climate change.
Urban environmental sustainability requires measures such as (1) a reduction
in the level of consumption of energy and other resources such as tropical
hardwoods, (2) a transportation strategy that recognizes that the automobile
will be the dominant form of transportation for the foreseeable future and that
job access, therefore, must be linked to vehicle rather than public transit
access, (3) the reduction of toxic and other waste streams at the source rather
than at the point of discharge,
n118 and (4) the continuing scrutiny of
gentrification, open space, and biodiversity protection programs to make sure that they are
not used to foreclose low and moderate income housing opportunities.
The issues addressed in this Article may seem far from the immediate efforts
to ensure that minorities and low income people are not exposed to a
disproportionate share of the risk of exposure to toxic chemicals and other
pollutants, but I believe that they are central to future efforts to integrate
environmental equity and mainstream environmentalism. Both movements need each
other. Mainstream environmentalism must give greater weight to the human
condition if it is to succeed as a major societal organizing force, and the
environmental equity movement needs a longer term and more comprehensive
perspective in order to achieve its objectives.
n1. There is a long history of intersection between efforts to preserve the
natural environment and efforts to mitigate the averse social and health
impacts of industrialization and urbanization through programs which promote
public health in the name of social equity. During the progressive era,
bothconservationists and social reformers shared faith in scientific analysis
and rational planning. After World War II, however,"mainstream" environmentalism distanced itself from grassroots social action and
"had become thoroughly linked to the environmental policy system, a system
designed to manage and control pollution rather than reduce or restructure the
sources of pollution and other environmental ills." Robert Gottlieb, Forcing the Spring: The Transformation of the American
Environmental Movement 316 (1993). The legacy of subordinating social equity to
resource management to enhance natural areas can be seen in the complex way in
which the California Environmental Quality Act (CEQA) attempts to reconcile
environmental protection and affordable housing. CEQA was amended in 1979 to
conform to state housing quality goals which declare that every Californian
should be able to enjoy a decent home and a satisfying living environment.
Agencies must balance this goal against the earlier goal of assuring a high
quality, healthful, and aesthetically pleasing environment. Pub. Res. Code
21000 (b), (g)
& 21001 (d). The balance may still be struck in favor of traditional
environmental values because the legislation prohibits an agency from reducing
the number of housing units in a proposed project as a mitigation measure only
if another measure would provide a comparable level of mitigation. Id. 21085.
n2. Mark Sagoff, Principles of Pollution Control,
71 Minn. L. Rev. 19 (1990).
n3. See, e.g., Council on Environmental Quality, Environmental Quality: The Fourth
Annual Report of the Council of Environmental Quality 111 (1973) (raising the
question of whether environmental policy should promote geographical equity and
"quite to the contrary, environmental programs are an unlikely and probably
inefficient mechanism for pursuing such goals.")
n4. During the formative years of the environmental movement, 1968-1973, the issue
was addressed in some important early studies, see infra notes 21-23, and then
dropped except by a few land use scholars. E.g., Daniel R. Mandelker,
Environment and Equity: A Regulatory Challenge (1981). The late Richard
Babcock, one of the foremost land use attorneys and critics of the system from
the 1950s to the 1980s, consistently urged the incorporation of social equity
into environmental land use regimes. As he once wrote of growth control
"their strident protests against urban sprawl may come just when the middle
class blacks find opportunities to buy one of those offensive detached
single-family lots in suburbia. The backyard barbecue is embarrassing only if
one can afford a condominium on the East side as well as a second home in
Vermont." Richard F. Babcock, Billboards, Glass Houses and the Law 139 (1977).
n5. Historically, both in the United States and in developing countries, the poor
and minorities have used equity as a defense to the adoption of or compliance
with high environmental standards. See Daniel B. Magraw, Legal Treatment of
Developing Countries: Differential, Contextual, and Absolute Norms, 1 Colo. J.
& Pol'y 69 (1990). An early example of this occurred in Houston, Texas where
there was a persistent refusal to adopt a comprehensive zoning ordinance. In
1962, African-American residents of Houston voted heavily against zoning, in
part, because of fears that zoning might prohibit the ancillary use of
residences for commercial purposes. Richard L. Babcock, The Zoning Game:
Municipal Practices and Policies 27 (1966).
n6. See Charles M. Haar
& Daniel W. Fessler, The Wrong Side of the Tracks (1986).
n7. For an early insightful political and historical study of the early
empowerment efforts, see Alan A. Altshuler, Community Control: The Black Demand
for Participation in Large American Cities (1970).
n8. See Robert D. Bullard, Solid Waste Sites and the Houston Black Community, 53
Soc. Inquiry 273 (1983).
n9. There is considerable confusion over the name of the movement. Much of the
theoretical and empirical underpinning of the movement is found in the work of
the black sociologist Robert Bullard. His major work is Robert D. Bullard,
Dumping in Dixie: Race, Class, and Environmental Quality (1990). His major
thesis is that
"people of color ... bear a disproportionate burden of this nation's air, water,
and waste problems," and thus he defines the issue as environmental racism. Robert D. Bullard, The
Threat of Environmental Racism,
7 Nat. Resources & Env't. 23 (1993). Bullard has recently written,
"Much of this activism is centered on securing environmental justice for
disenfranchised communities. Environmental racism is seen as a major barrier to
achieving equitable distribution of
"healthy'physical environments ...." Robert D. Bullard, Environmental Equity: Examining the Evidence of
Environmental Racism, 2 Land Use Forum 6, 11 (1993). The confusion of
objectives is an example of the philosophical tension between equal and just
but unequal distributions, which can be traced to Plato. For a recent treatment
of this tension, see Gregory Vlastos, Justice and Equality, in Theories of
Rights 41 (Jeremy Waldron ed., 1984).
n10. The term environmental justice can be justified as an application of
Aristotle's conception of distributive as opposed to corrective justice. My
colleague Richard W. Wright has lucidly explored the differences between these
concepts. Richard W. Wright, Substantive Corrective Justice,
77 Iowa L. Rev. 625, 691-702 (1992). Professor Vicki Been has observed that
"calls for environmental justice are essentially calls for
"equality' . ... Advocates of environmental justice have wisely chosen to
advance general concepts of equality, rather than endanger their coalition by
attempting to specify the precise content of"justice,'
" Vicki Been, What's Fairness Got To Do With It? Environmental Justice and the
Siting of Locally Undesirable Land Uses,
78 Cornell L. Rev. 1001, 1006 (1993).
n11. The gist of the empirical research on which the environmental equity movement
depends is that more waste disposal sites and incinerators are located in poor
and minority communities than in wealthier and non-minority communities. This
alone does not support the argument that the poor and minorities are exposed to
a disproportionate share of short and long term public health risks. There are
serious problems linking this data both to intentional racism or to
demonstrable health or welfare effects. See Been, supra note 10, at 1009-26.
n12. Bullard, supra note 8, at 11.
n13. But see Luke W. Cole, Empowerment as the Key to Environmental Protection: The
Need for Environmental Poverty Law,
19 Ecology L.Q. 619, 636 (1992) (describing the environmental equity movement as the third wave of
environmental activism after the conservation movement and the legal-scientific
"mainstream" movement that developed in the 1970s).
n14. The efforts of the residents of Warren County, North Carolina, a predominately
Afro-American county, to stop a PCB landfill led to the now seminal United
Church of Christ study, Commission on Racial Justice, United Church of Christ,
Toxic Wastes and Race in the United States (1987).
n15. This evolution is traced in Philip Shabecoff, A Fierce Green Fire: The
American Environmental Movement (1993).
n16. The theories are laid out in Rachel D. Godsil, Remedying Environmental Racism,
90 Mich. L. Rev. 394 (1991). Professor Richard J. Lazarus has explained why equal protection suits have not
"Courts seem far less willing to invoke the equal protection clause to dictate
to local governments how harms such as environmental risks must be
redistributed in a community, perhaps because the redistribution would so
directly implicate the quality of the environment enjoyed by those in the
community wielding great political and economic influence." Richard J. Lazarus, Pursuing
"Environmental Justice": The Distributional Effects of Environmental Protection,
87 Nw. U. L. Rev. 787, 834 (1993); see also Peter L. Reich, Greening the Ghetto: A Theory of Environmental Race
41 U. Kan. L. Rev. 271 (1992) (state laws that permit assessment of environmental impacts of communities
offer more promising relief compared to federal equal protection law).
n17. NIMBY is an acronym used by environmental groups to oppose Locally Undesirable
Land Uses (LULUS). See Frank Popper, The Environmentalist and the LULU, in
Resolving Locational Conflict 1 (Robert W. Lake ed., 1987).
n18. The extent to which environmental protection does not fit within the
enlightenment paradigm of human rights is explored at greater length in A. Dan
Tarlock, Environmental Law, But Not Environmental Protection, in Natural
Resources Policy and Law: Trends and Directions 163, 167-70 (Lawrence J.
& Sarah Bates eds., 1993).
n19. E.g., Peter Margulies, Building Communities of Virtue: Political Theory and
Land Use Policy, And The Not in My Backyard Syndrome,
43 Syracuse L. Rev. 945 (1993) (using modern civic republican and feminist theory to balance community
acceptance of LULUs with the recognition that there are legitimate
n20. This view can be traced to an influential book, Lewis Mumford, The City in
n21. In one of the major Congressional documents that influenced the National
Environmental Policy Act and other legislation, the
"crises of the cities" and the
"crisis of the natural and rural environments" were identified as a function of
"a disregard for man's relationship to his environment." A National Policy for the Environment 1968: Hearing Before the Senate Comm. on
Interior and Insular Affairs and the House Comm. on Science and Astronautics,
90th Cong., 2d Sess. 8 (1968). However, environmental policy was viewed as a
different problem which needed to be placed on equal footing with then existing
efforts to improve the urban condition. This deeply rooted distinction between
the built or human environment, and the natural environment has now been eroded
by the source from which it was taken - ecology. In recent years, the idea that
there is much natural environment has been challenged. See, e.g., Daniel
Botkin, Discordant Harmonies (1990). This idea poses a new challenge for
mainstream environmentalism because it collapses the distinction between the
natural (pristine), and disturbed (used by humans), environments. The
implications of this scientific paradigm shift are discussed infra at part II.
n22. The literature on the hostility between the elite environmental movement and
the working class is documented in Frederick H. Buttel
& William L. Flinn, Social Class and Mass Environmental Beliefs, 10 Env't.
& Behavior 433 (1978) (suggesting that place of residence may be a better
predictor of environmental awareness than social class).
n23. In 1972, the Conservation Foundation held a three-day conference on
Environmental Quality. The proceedings were published as Environmental Quality
and Social Justice in Urban America (James Noel Smith ed., 1974). The chapter,
The Coming of Age of Environmentalism in American Society, surveyed the critics
of environmentalism, which included both proponents of racial justice and
conservative proponents of traditional economic development, and observed that
perhaps the most critical fault of the movement was the inability
"to see itself in respect to the larger social system, and to accommodate its
own agenda to other competing social priorities." Id. at 1, 8. Peter Marcuse of the UCLA Department of Architecture and Urban
Planning began his presentation by remarking that
"it might be said that the conservation movement has come to a concern for
inner-city problems late in life, reluctantly, and only under pressure from
outside circumstances." Id. at 17.
n24. See William Tucker, Progress and Privilege: America in the Age of
n25. E. Donald Elliot, Jr., A Cabin on the Mountain: Reflections on the
Distributional Consequences of Environmental Programs,
1 Kan. J.L. & Pub. Pol'y 4 (1991). What little empirical data there is suggests that environmental quality, like
most other government actions, has economically perverse distribution
consequences: wealthier individuals benefit more from regulatory programs more
than do poorer ones. See Lazarus, supra note 16, at 796-806 for a review of the
literature. This data does not in and of itself support the environmental
equity movement. Hard evidence on the disproportionate health effects of
exposure is lacking, as it is for all pollutants. In addition, the structure of
existing programs may not be responsive to equity concerns. For example, in the
early 1980s lawyers tried to supplement Superfund with an elaborate victims
compensation scheme, while community activists representing potential victims
wanted a more modest but accessible medical monitoring program.
n26. See infra text accompanying notes 104-19 for further discussion.
n27. See Botkin, supra note 21. The consequences of the shift from an equilibrium
to a non-equilibrium paradigm will be discussed in a forthcoming symposium in
the Chicago-Kent Law Review. See also A. Dan Tarlock, The Non-Equilibrium
Paradigm and the Partial Unraveling of Environmental Law, 27 Loy. L.A. L. Rev.
n28. For a recent examination of the persistence of racial segregation both in
older cities and in middle class suburbs around older cities see Symposium, The
Urban Crisis: The Kerner Commission Report Revisited,
71 N.C. L. Rev. 1283 (1993). In particular, see John O. Calmore, Spatial Equality and the Kerner Commission
Report: A Back-to-The Future Essay,
71 N.C. L. Rev. 1487, and John C. Borger, Toward Ending Residential Segregation: A Fair Share
Proposal for the Next Reconstruction,
71 N.C. L. Rev. 1573.
& Lucia White, The Intellectual Versus the City: From Thomas Jefferson to Frank
Lloyd Wright (1962), remains the leading exposition of the anti-urban bias in
American culture. The Whites identify the romantic writers such as Emerson and
Thoreau rather than Jefferson as the originators of the philosophical basis for
preferring rural to urban life. See infra text accompanying notes 57-58
(discussing 19th century anti-urban thinking on Frank Lloyd Wright and suburban
n30. The Arcadian tradition, which is usually traced to Virgil, asserts the
superiority of the pastoral over the urban landscape. See Leo Marx, The Machine
in the Garden (1964).
n31. See, e.g., Eric T. Freyfogle, The Land Ethic and Pilgrim Leopold,
61 U. Colo. L. Rev. 217 (1990) (advocating Leopold's view).
n32. Eugene P. Odum, Basic Ecology (4th ed. 1983).
n33. Id. at 78.
Trinity Episcopal Sch. Corp. v. Romney, 387 F. Supp. 1044 (S.D.N.Y. 1974);
Nucleus of Chicago Homeowners Ass'n v. Lynn, 372 F. Supp. 147 (N.D. Ill. 1973); see also Mary E. Brooks, Housing Equity and Environmental Protection: The
Needless Conflict (1976) (environmental arguments to justify exclusionary land
use practices). The view of minorities as pollution or externality generators
continues in the economic literature. E.g., William Fischel, Equity and
Efficiency Aspects of Zoning Reform, 27 Public Pol'y 301 (1979) (removing
zoning barriers will impose additional costs on suburbs). Happily, state
environmental quality assessment acts have rejected the invitation to use
environmental assessment to further racial and economic exclusion. E.g.,
San Franciscans for Reasonable Growth v. City and County of San Francisco, 209 Cal. App. 3d 1502 (Ct. of App. 1989) (need for child care from development an economic and
quality of life but not physical environmental impact);
San Jose Country Club Apartments v. County of Santa Clara, 137 Cal. App. 3d 948 (Ct. of App. 1982) (adopting anti-discrimination ordinance does not require
n35. Samuel P. Hays
& Barbara D. Hays, Beauty, Health, and Permanence: Environmental Policies in the
United States, 1955-1985, at 72-73 (1987).
n36. See id. The leading history on suburbanization is Kenneth T. Jackson,
Crabgrass Frontier: The Suburbanization of the United States (1985); see also
Mary Hommann, City Planning in America: Between Hope and Despair (1993).
n37. George Douglas, All Aboard: The Railroads in American Life 225-57 (1992)
(tracing the impact of the railroads in influencing work and living habits from
before the Civil War to the heyday of the railroad era, 1880-1917).
n38. See Joel Garreau, Edge City: Life on the New Frontier (1991) (defending these
new patterns of urbanization).
n39. Kevin Lynch, A Theory of Good City Form (1981).
n40. See Denise Scott Brown, Wright in the Rear-View Mirror, N.Y. Times, Sept. 12,
1993, at 56.
n41. The link between the natural environment and city form was central to the work
of the great Scottish renaissance naturalist and city planner, Patrick Geddes,
whose theories influenced the leading American anti-urban city planning
scholar, Lewis Mumford. Phillip Boardman, Patrick Geddes: Maker of the Future
n42. In a survey of post-World War II urbanization in Athens, Greece, Thomas
Maloutas of the National Centre for Social Research in Athens notes that as
upper class city dwellers migrated to the suburbs, the environment was
"preserved ... at the expense of rising housing costs and intensive social
segregation." Thomas Maloutas, Housing Solutions/Environmental Problems, in The Improvement
of the Built Environment and Social Integration in Cities: Selected Papers and
Conclusions 177, 184 (1991)[hereinafter Improvement].
n43. See Sandra Walklate, Conclusions, Recommendations of the Working Group on
Preventing and Fighting Crime/Delinquency and the Urban Environment, in
Improvement, supra note 42, at 151.
n44. The same confusion exists in environmental law. For example, the National
Environmental Policy Act of 1969 refers to the
42 U.S.C. 4332(c), but the California Environmental Quality Act has been interpreted to be
"more focused on physical changes than is NEPA." Sharon Duggan et al., Guide to the California Environmental Quality Act (CEQA)
n45. See Carl E. Schorske, Fin-de-Siecle Vienna: Politics and Culture (1980)
(discussing that city's conscious effort to change the city from an autocratic
ceremonial one to a liberal democratic one through architecture).
n46. See Mel Scott, American City Planning 47-109 (1969) (containing the best
treatment of the irony and influence of The City Beautiful movement).
n47. William H. Wilson, The City Beautiful Movement 64 (1989).
n48. William Cronon, Nature's Metropolis Chicago and the Great West (1991).
n49. Id. at 349.
n50. See Scott, supra note 46, at 95-96.
n51. See James Gilbert, Perfect Cities: Chicago's Utopias of 1893, at 96
(1991)(account of the governors of the 1893 Columbian Exposition, which did
much to establish the city beautiful as the ideal urban form, to exclude Black
participation in the fair).
n52. See generally Daniel M. Bluestone, Constructing Chicago (1991).
n53. John Reps, Town Planning in Frontier America 13-24 (1965) (tracing the
European origins of the grid pattern towns which characterize American cities
from Spanish colonization to the present).
n54. The leading American proponent of organic theories was Lewis Mumford. See
Mumford, supra note 20.
n55. See Ebenezer Howard, Garden Cities of To-Morrow (1965). This book has remained
the Bible of the Garden City and new town movement throughout the world.
n56. See, e.g., S. Tomioka
& E. Tomioka, Planned Unit Developments: Design and Regional Impact (1984);
Krasnowiecki, Legal Aspects of Planned Unit Development, in Theory and Practice
of Planned Unit Development 99, 101-02 (R. Burchell ed., 1973).
n57. Frank Lloyd Wright, The Living City 102 (1958).
n58. See generally Urban Renewal: People, Politics and Planning (Jewel Bellush
& Murray Hausknecht eds., 1967) (a collection of essays on the history, theory
and practice of urban renewal).
n59. See generally Martin Anderson, The Federal Bulldozer: A Critical Analysis of
Urban Renewal, 1949-1962 (1964); Jane Jacobs, The Death and Life of Great
American Cities (1961); Scott Greer, Urban Renewal and American Cities: The
Dilemma of Democratic Intervention (1965); Kevin Lynch, The Image of the City
(1960) (leading classic criticisms).
n60. See Jordan A. Schwartz, The New Dealers: Power Politics in the Age of
n61. The California Planning and Development Reporter recently nominated the city
of Indian Wells, California, located near Palm Springs, for the 1993
"Creative Misuse of Public Purpose" award for its diversion of $ 10,000,000 in tax increment funds to a private
golf course. Tax increment is a modern form of urban renewal subsidy developed
to replace direct federal subsidies which were phased out in the 1970s. Tax
increment financing freezes the property tax base for a new project but
collects the taxes added by the value of the project and places them in a trust
fund to finance the public infrastructure to support the new development. In
Indian Wells, the city built two golf courses with tax increments funds to
attract major resorts, but then abandoned the step of public financing and
allowed a luxury homes developer to keep the $ 10,000,000.00 that would be
collected through tax increment financing and use it to build a golf course for
"The Reserve." Morris Newman, More Gold Courses for Indian Wells, Cal. Plan.
& Dev. Rep., Oct. 1993, at 12. Tax increment standards, as urban renewal, have
progressed from a required finding of blight to any public purpose, e.g.
enhancement of the economy. Indian Wells defends its tax increment financing on
the grounds that it creates jobs, including a club house pro.
n62. See The Ideas of Le Corbusier On Architecture and Urban Planning (Jacques
Guiton ed., 1981).
n63. James H. Kunstler, The Geography of Nowhere: The Rise and Decline of America's
Man-Made Landscape 79 (1993).
348 U.S. 26 (1954).
Id. at 33.
Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984)(middle class housing);
City of Oakland v. Oakland Raiders, 646 P.2d 835 (Cal. 1982)(professional football team).
n67. E.g., Anderson, supra note 59; Edward C. Banfield, The Unheavenly City: The
Nature and Future of Our Urban Crisis (1968); Greer, supra note 59.
n68. Sandro Giulianelli, Opening Address in Improvement, supra note 42, at 13.
n69. Philip Potter, Reconceptualising Housing Quality, in Improvement, supra note
42, at 173.
n70. Professor Robin Paul Malloy has written a fascinating account of state
capitalism in Indianapolis, Indiana. Robin Paul Malloy, Planning for Serfdom:
Legal Economic Discourse and Downtown Development (1991), represents his
outrage with Indianapolis's efforts to transform itself from a generic
midwestern city to a sports mecca. Professor Malloy's criticismis primarily
ideological. He argues that the process of private-public urban renewal is a
closed rather than an open one and thussacrifices individual rights and
counter-voices. This argument has some merit, but it does not respond to the
basic issue of how older cities based on manufacturing and regional
distribution survive in the face of powerful demographic, economic, and social
forces. In the nineteenth and early twentieth centuries, city involvement in
the economy was kept at modest levels to maximize the accumulation of private
wealth. Sam Bass Warner, The Private City: Philadelphia in Three Periods of
Growth (1968). However, public-private center city partnerships are now
necessary to preserve the economic base of older cities, and cannot, as
Professor Malloy states, be condemned solely on moral grounds. See
Public-Private Partnerships: Improving Urban Life (Perry Davis ed., 1986). Nor
does Professor Malloy's book adequately realize the extent to which state
capitalism is now an engrained feature of post-New Deal America. See Schwartz,
supra note 60; Denis J. Brion, The Meaning of the City: Human Redevelopment and
Loss of Community,
25 Ind. L. Rev. 685 (1992) (criticizing state capitalism); William F. Harvey, If Ye Are Privy to Thy
Country's Fate, Oh Speak: An Answer From Robin Paul Malloy's Planning for
Serfdom and Classical Liberalism in the Tradition of the Scottish
25 Ind. L. Rev. 633 (1992).
n71. Council on Environmental Quality, Environmental Quality: The Fourth Annual
Report of the Council on Environmental Quality 1-41 (1973) contains a
discussion of the early efforts to balance
gentrification with preventing the dislocation of existing middle and lower-middle class
n72. The leading academic legal critic of
gentrification is Professor Henry McGee of the University of California, Los Angeles. See
Henry McGee, Afro-American Resistance to
Gentrification and the Demise of Integration Ideology in the United States,
23 Urb. Law. 25 (1991); Donald C. Bryant
& Henry W. McGee,
Gentrification and the Law: Combatting Urban Displacement,
25 Wash. U. J. Urb. & Contemp. L. 43 (1983).
n73. Keith Aoki, Race Space, and Place: The Relation Between Architectural
Modernism, Post-Modernism, Urban Planning and
20 Fordham Urb. L.J. 699, 825 (1993).
n74. See Suzanne Forest, The Preservation of Village: New Mexico's Hispanics and
the New Deal 17-24 (1989) (discussing how federal public land policy confined
Hispanics and Indians in northern New Mexico to an inadequate land base).
n75. In yet another ironic example of the tangled relationship between
environmentalism and city planning, E.A. Gutkind, Urban Development in Central
Europe (1964), traces the development of German cities from the late Middle
Ages to the nineteenth century and concludes that the confining influences of
the medieval Renaissance and Baroque cities were abandoned under the influence
of the Romantic movement.
"The Romantic movement fundamentally changed the relationship between nature and
the general layout of the town . . . The spread of modern towns over the
countryside had begun-although with devastating results." Id. at 219. Still, European cities have done a better job compared to the
United States in preserving a balance between city and countryside. See George
Lefcoe, Land Development in Crowded Places: Lessons From Abroad 39-65 (1979).
San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973);
Lindsey v. Normet, 405 U.S. 56 (1972).
n77. See Robert C. Ellickson
& A. Dan Tarlock, Land-Use Controls: Cases and Materials 822-27 (1981)
(analyzing the rise of constitutional and quasi-constitutional
n78. Lawrence Katz
& Kenneth T. Rosen, The Interjurisdictional Effects of Growth Controls on
30 J.L. & Econ. 149 (1987); Stanford Envtl. Law Soc'y, Land Use and Housing on the San Francisco Peninsula
n79. See The Use of Land: A Citizens' Policy Guide to Urban Growth (A Task Force
Report Sponsored by the Rockefeller Brothers Fund, William K. Reilly ed.,
1973). Transferrable development rights regimes are central to this strategy.
See Daniel R. Mandelker, The Conflict Between Environmental Land Use Regulation
and Housing Affordability, 15 Zon.
& Plan. L. Rep. 1 (1992) (discussing land use regulation to promote both
environmental quality and social equity).
South Burlington County NAACP v. Mount Laurel, 456 A.2d 390 (N.J. Sup. Ct. 1983).
n81. See generally A. Dan Tarlock, Local Government Protection of Biodiversity:
What is Its Niche?,
60 U. Chi. L. Rev. 555 (1993)(examining the problems and opportunities of local governments face in using
regulatory authority to protect biodiversity).
n82. See Craig Anthony Arnold, Conserving Habitats and Building Habitats: The
Emerging Impact of the Endangered Species Act on Land Use Development,
10 Stan. Envtl. L.J. 1 (1991).
n83. The most recent literature assessment on this subject concludes that programs
not implemented through strong state or regional entities are problematic. Eric
D. Kelly, Managing Community Growth: Policies, Techniques, and Impacts (1993).
n84. Laurie Pickup, Transport, Environment, and Social Integration in Cities, in
Improvement, supra note 42, at 51.
n85. This argument runs counter to the thesis popularized in the movie, Who Killed
Roger Rabbit that the major automobile manufacturers conspired with cities to
destroy urban rail systems. In his study of transportation in southern
California, Scott L. Bottles, Los Angeles and the Automobile: The Making of the
Modern City (1987), Mr. Bottles argues that the public turned against the
streetcar industry because it failed to implement its promise to open up the
suburbs to development. This led to the distrust of regulated public utilities
and blocked efforts during the 1930s to the 1950s to develop a viable public
n86. The top three federal programs that influenced the suburbanization of America
are (1) federal housing policies such as the deduction of mortgage interest and
mortgage guaranteeprograms, (2) federal highway construction program, and (3)
the former Title II program of the Clean Water Act, which subsidized suburban
sewer systems and thus lowered development costs of growth areas. See Roger J.
& Mary E. Vogel, The Urban Impacts of Federal Policies, Population and
Residential Location (1979).
n87. The Car and the City: The Automobile, The Built Environment, and Daily Urban
Life (Martin Wachs
& Margaret Crawford eds., 1992) (a recent collection of automobile scholarship)
[hereinafter The Car and the City].
n88. See, e.g., National Academy of Engineering, Cities and Their Vital Systems:
Infrastructure Past, Present, and Future (1988) (a review of urban
infrastructures that draws no normative conclusions and does not consider the
implications of many of the useful models of urban growth and saturation
discussed in the various papers).
n89. Stewart L. Udall, The Next Generation 266 (1988).
n90. See Theodore L. Garrett
& Sonya D. Winner, A Clean Air Act Primer:
Part II, Chapter 9, 22 Envtl. L. Rep. (Envtl. L. Inst.) 10, 301 (1992) (describing Title II of the Clean Air Act).
n91. 3 Metropolitan Transp. Comm'n, Transportation Improvement Program for the
Nine-County San Francisco Bay Area, Part B: Air Quality Assessment (1993). This
recent study of the air quality benefits of additional highway and mass transit
investment in the San Francisco Bay Area concluded that an
"$ 11 billion investment overwhelmingly concentrated in new HOV facilities on
existing freeways ..., new transit and local arterial improvements resulted in
a modelled reduction in pollutants of less than 1% ...." Id. at 3. Similar studies in developed regions show the same marginal
improvement in air quality.
n92. Melvin M. Webber, The Joys of Automobility, in
The Car and the City, supra note 88, at 274, 279 (1992).
n93. See Clarence S. Stein, Towards New Towns for America 67 (1957) (arguing that
the community's failure to become a Garden City was not a failure but
"essentially it was a great success. It was a splendid adventure: a voyage of
discovery in search of a new and practical form of urban environment to meet
the actual requirements of today.").
n94. Drummond Buckley, A Garage in the House, in
The Car and the City, supra note 87, at 124, 135.
n95. See Kevin Starr, Material Dreams: Southern California Through the 1920s
(1990); Kevin Starr, Inventing the Dream: California Through the Progressive
n96. William Fulton, California Neotraditional Plans, Projects, L.A. Times, Aug.
23, 1993, at 6.
n97. See James E. Krier
& Edmund Ursin, Pollution
& Policy: A Case Essay on California and the Federal Experience With Motor
Vehicle Air Pollution, 1940-1975, at 77-101 (1977).
n98. See Christopher D. Stone, The Gnat is Older Than Man: Global Environment and
Human Agenda 80-83 (1993) (discussing the difference between the politics of
global climate and ozone depletion regulation).
n99. See Eli Chernow, Implementing the Clean Air Act in Los Angeles: The Duty to
Achieve the Impossible,
4 Ecology L.Q. 537 (1975).
n100. The political explanation for this strategy is the influence of Congressman
John Dingell of Detroit, Chairman of the House Energy and Commerce Committee.
See Robert V. Percival et al, Environmental Regulation: Law, Science and Policy
n101. Five nonattainment areas are specified, and all major metropolitan areas are
placed in a category. State reduction requirements increase with the severity
of the problem. Only Los Angeles is an extreme nonattainment area, but seven
large metropolitan areas and Muskegon, Michigan are classified as severe.
Various controls are phased in over a time period that can last up to 15 years
for severe areas and 20 years for Los Angeles.
n102. See John-Mark Stensvaag, Clean Air Act 1990 Amendments Law and Practice 5.2
n103. Between 1955 and 1992 the peak level of ozone declined from 680 parts per
billion to 300 parts per billion as the population increased from 5 to 14
million and the number of motor vehicles increased from about 2.3 to 10.6
million. Three hundred parts per billion is classified as an extreme
nonattainment area under the 1990 Clean Air Act amendments.
n104. James M. Lents
& William J. Kelly, Clearing the Air in Los Angeles, Scientific Amer., Oct.
1993, at 32.
n105. Id. at 38.
n106. Mary Beth Barber, Transportation in California, 24 Cal. J. 7, 10 (1993). The
same problem has long existed in other large urban areas. See Council on Envtl.
Quality, Environmental Quality: The Second Annual Report of the Council on
Environmental Quality 189-95 (1971).
n107. See Law of Environmental Protection 11.08 (Sheldon M. Novick et al. eds.,
1993) (describing the failures of EPA's TCM programs in the 1970s).
42 U.S.C. 7408 (e)-(f) (1988).
n109. Id. 7511a (Supp. 1991).
n110. Robert Reinhold, Hard Times Dilute Enthusiasm for Clean-Air Laws, N.Y. Times,
Nov. 26, 1993, at A1.
n111. For a recent summary of this debate, see International Law Anthology ch. 10
(Anthony D'Amato ed., 1994).
n112. See A. Dan Tarlock, Environmental Protection: The Potential Misfit Between
Equity and Efficiency,
63 U. Colo. L. Rev. 871 (1992) (discussing the origins of this concept and the problems that must be overcome
before it can be applied to environmental protection).
n113. World Comm'n on Environment and Development, Our Common Future 43-44 (1987).
n114. See generally David Pearce et al., Sustainable Development: Economics and
Environment in the Third World (1990).
n115. See Bunyan Bryant
& Paul Mohai, Summary, in Race and the Incidents of Environmental Hazards 215,
219 (Bunyan Bryant
& Paul Mohai eds., 1992)(proceedings of a conference held at the University of
Michigan School of Natural Resources).
n116. See generally Botkin, supra note 21.
n117. The late Jane Jacobs first suggested this when she speculated what the change
from mass to specialized production would have on the urban form. See generally
Jane Jacobs, The Economy of Cities (1969). Modern urban analysis must start
from the fact that capital is now a global commodity largely uncontrolled by
traditional sovereignty exercises of political power. This fact explains the
intense job-creation and edifice construction competition among cities, but we
have not yet begun to debate how to create sustainable cities in the face of
this reality. See Paul H. Brietzke, Urban Development and Human Development,
25 Ind. L. Rev. 741, 745-51 (1992).
n118. Tjeerd Deelstra, Introduction, in Cities and the Global Environment:
Proceedings of a European Workshop (The Hague, Dec. 5-7, 1990).
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes