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This article discusses the relationship between equal protection jurisprudence and environmental justice in the United States, particularly in relation to environmental decision-making on the siting of frequently unwelcome environmental amenities such as hazardous waste disposal sites. The article explores the current mismatch between equal protection jurisprudence and recent discoveries in the behavioural sciences about the nature of human decision-making and the origins of racial and economic bias. It discusses the extent to which these discoveries should and could be incorporated into decision-making related to environmental burdens and the changes that will be necessary to make United States jurisprudence in this area compliant with international norms on human rights as far as discrimination and environmental protection are concerned.
This article considers how a phenomenological perspective contributes to the theme of ‘human bodies in material space’. The author reviews several central phenomenological concepts, including lifeworld, natural attitude, epoché, and the phenomenological reduction. The author then draws on the phenomenological discussion of lived body, body-subject, and environmental embodiment to describe the intimate lived relationship between human bodies and the physical worlds in which they find themselves. Particularly relevant in this regard is the phenomenological concept of place, which is defined as any environmental locus that gathers human actions, experiences, and meanings spatially. The article uses the work of urban critic Jane Jacobs (The Death and Life of Great American Cities, 1961) and sociologist Eric Klinenberg (Heat Wave: A Social Autopsy of Disaster in Chicago, 2002) to illustrate how environmental embodiment and vibrant urban places are supported or stymied by material and spatial qualities like street configuration, population density, and mix of activities. The author concludes by considering what a phenomenological perspective on environmental embodiment and place might mean for human rights and environmental justice. The possibility of place justice is proposed: the use of indirect means like environmental design, public policy, and place-oriented law to protect vibrant places and to invigorate moribund environments.
Burns H Weston and David Bollier
Despite many noble efforts to champion the right to a clean and healthy environment and related regulation, the official recognition and jurisdictional reach of this right is highly limited. It does not matter if it is understood as an entitlement derived from other substantive rights, as a substantive right autonomous unto itself, or as a cluster of procedural entitlements. Our highly decentralized and far too voluntarist international legal order is far more concerned with privileging commercial imperatives than in protecting human rights and environmental values. However, we may be approaching a ‘Grotian Moment’ that presents an unusual opening for change. A variety of civil resistance movements, new sorts of Internet-based collaboration and governance, and dissenting schools of thought in economics, environmental stewardship and human rights, are gaining both credibility and adherents – locally, nationally, regionally, globally, and points in between. This convergence points to a new paradigm of law, economics, and governance that could provide a practical new way to reframe the human right to environment as the human right to commons- and rights-based ecological governance – what we call ‘Green Governance.’ Unlike the right to environment now practiced – theoretically appealing but troublingly indeterminate operationally – the human right to Green Governance would be anchored in a cognizably well-defined, rich history of both substantive and procedural justice. As we explain, Green Governance can provide a powerful means for challenging the State/Market's structural limitations by drawing upon the power of Human Rights, Vernacular Law, and Self-Organized Governance as a complement or substitute for State-based governance. A human right to Green Governance could help protect the creations of nature and related societal institutions that we inherit jointly and freely from our forebears, hold in trust for future generations and seek to manage democratically in accordance with human rights principles. To advance this vision, we offer a Universal Covenant Affirming a Human Right to Commons- and Rights-based Governance of Earth's Natural Wealth and Resources, a declaration ready for immediate adoption by and for all levels of concerned society worldwide.
Vito De Lucia
Environmental law finds itself in a very delicate position. Its role is to elaborate rules and principles for addressing multiple ecological crises, yet environmental law is structurally and conceptually rooted in a broader legal tradition thoroughly implicated in the domination and ‘othering’ of nature. The ecological worldview challenges the roots of modern law, casting critical light upon Cartesian dualism and the epistemology of mastery. While environmental law has incorporated some of the new knowledge offered by ecology into its normative texture, and has shifted its focus from fragmented parts and individuals (for example, individual species) towards wholes, relationships and complexity (for example, biodiversity, ecosystems processes), it remains far from being a comprehensive translation of the ecological worldview into law. Against this background, this article will discuss and compare two frameworks – Earth Jurisprudence and Law for Nature – both of which aim to elaborate an ecological philosophy of law. It will be suggested that while their critical premises are similarly grounded on ecological critiques of central legal categories such as subject (persons), object (things) and property (ownership), their respective ethical stances and central strategies are quite different: Earth Jurisprudence aims at articulating an ecocentric narrative in which nature is understood as a plurality of legal subjects endowed with rights; Law for Nature starts from a concept of ecological normativity, which through a continuous transformative process re-orients law, and grounds the relationship between subject and object in the concept of patrimonium. The tensions between subjective rights and objective norms, between individual and community, and between practical action and long-lasting, radical re-orientation, operate as guides for the discussion offered here.