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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. Additionally, a resurgence in federalism has resulted in additional theoretical hurdles for pursuing environmental justice under federal law.

Confronted with these difficulties this essay examines a question that has not been addressed for decades: Whether the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice?' This essay argues that the answer is yes, for several reasons.

First, despite assertions to contrary, the Supreme Court has never foreclosed pursuit of disparate impact litigation under the Thirteenth Amendment as it has under equal protection. This essay argues that the Court should not do so, based on the Thirteenth Amendment's constitutionally distinct substantive equality approach and its origins in the mission of antisubordination of African Americans.

Second, the Thirteenth Amendment holds advantages over equal protection and the Commerce Clause as a source of authority for environmental justice legislation. Compared to Equal Protection, the Court has never applied Boerne style federalism limits to the Thirteenth Amendment, nor should it do so. States' rights arguments are particularly dubious in the Thirteenth Amendment context, and the amendment's original intent (expressed by the amendment's authors) confirms that there is no valid federalism-based apology for perpetuating the badges and incidents of slavery such as those arising in environmental justice cases.

Compared to the Commerce Clause, the Thirteenth Amendment presents a cleaner basis for federal involvement in what might otherwise be regarded as purely local land use decisions. Current Commerce Clause doctrine requires Congress to identify to a court's satisfaction a "substantial effect" on interstate commerce; no such showing is required under the Thirteenth Amendment. Moreover, protecting "traditional state functions" from Congressional intrusion-or, in a phrase, states' rights-can hardly be a legitimate basis for objecting to Congress's Thirteenth Amendment power, given the necessity for and history of that amendment.

This essay is organized in four parts. Part I will describe 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 difficulties that followed. Part II will 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 will take up the potential federalism issues arising under the equal protection clause and Commerce Clause, respectively. Part IV will explain the advantages that a Thirteenth Amendment approach may hold over these equal protection and Commerce Clause paths in relation to the disparate impact problem and the federalism problem.