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19 Nevada Law Journal 509 (2018)


Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice.

Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and the considerable drag it has imposed on equal protection-based efforts to pursue environmental justice. Part III discusses the potential federalism issues for environmental justice arising under the equal protection clause and Commerce Clause, respectively. Part IV explains the relative advantages that a Thirteenth Amendment approach over equal protection and Commerce Clause approaches in relation to the disparate impact problem and the federalism problem.