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Land Use Regulation and Environmental Justice

June 2000

Citation: 30 ELR 10395

Issue: 6

Author: Craig Anthony (Tony) Arnold

Environmental justice has emerged as a major environmental law issue with almost no corresponding attention to the role that land use law can play in addressing environmental injustice or to the role that environmental justice will play in shaping land use law.1 This Article explores the relationship between environmental justice and land use regulation and planning—a relationship that lawyers, scholars, judges, and policymakers must increasingly understand.

Environmental justice is about the growing awareness of, and response to, the distributional inequities of environmental hazards and locally unwanted land uses (LULUs) by race and class.2 In the 1980s and 1990s, grass-roots community organizers and civil rights activists, civil rights lawyers, government agencies, legal scholars, and other academics began to study and demonstrate that low-income people and people of color bear a disproportionately high burden of exposure to environmental hazards or LULUs, particularly in the neighborhoods in which they live and the environments in which they work.3 There have been five primary responses to this phenomenon, each with corresponding conceptions of, or ways of thinking about, the environmental justice problem4: (1) to study the evidence and causes of the distribution of environmental hazards and LULUs (evidentiary conceptions)5; (2) to organize politically against proposed [30 ELR 10396] or existing LULUs (power conceptions)6; (3) to vindicate the constitutional, statutory, or common-law rights of those affected disproportionately by environmental hazards or LULUs (legal conceptions)7; (4) to heighten enforcement of environmental laws (environmental conceptions)8; and (5) to seek or rely on market mechanisms to address the distribution problem (economic conceptions).9

The author is Associate Professor of Law and Director of the Center for Land Resources, Chapman University School of Law. Mr. Arnold received a B.A. from the University of Kansas, and a J.D. from Stanford University. This Article is reprinted in part, with modifications, from Craig Anthony (Tony) Arnold, Planning Milagros: Environmental Justice and Land Use Regulation, 76 DENV. U. L. REV. 1 (1998), with permission of the University of Denver College of Law. The Article has been updated and revised by the author and edited by ELR staff. The author is deeply grateful for (1) the helpful comments of Morton Gitelman, Susanna Kim, Guadalupe Luna, Kenneth Manaster, and Tracy Arnold-Chapman; (2) the research assistance of Stephen Cassidy, Scott Burkhalter, Michael Bailey, Darren Stroud, Randy Weichbrodt, Chris Erwin, Shirley Arnold, and Judy Gray; and (3) the resourcefulness of the staffs of the Chapman University Law Library, the Crown Law Library at Stanford Law School, and the Government Documents Library, California State University, Fullerton.

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