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A forthcoming article by John Knox and Nicole Tronolone brings international human rights law to bear on the issue of environmental justice. They argue that international human rights law provides a basis for treating some types of environmental inequities as human rights violations. In particular, they argue that the government has a duty to redress racial disparities in exposure to pollution and toxic chemicals. In their view, the government has conspicuously failed in this duty. In a recent article of my own, I tried to work through questions about how regulations could address economic and racial inequality.

The quest for environmental justice is also a quest for environmental human rights. The fight is the same fight, and the lessons learned in one arena can help in the other.

President Biden had ambitious plans, with the 2022 Inflation Reduction Act (IRA) and 2021 Bipartisan Infrastructure Law (BIL), to rebuild America’s aging infrastructure and revitalize our economy by fighting climate change through creating green jobs, reducing our greenhouse gas (GHG) emissions, and championing environmental justice. In the scant few years since the passage of these monumental laws, changes are already taking root. For example, in Maryland, funding is flowing to various sectors of the state — private and public — for grid modernization, transportation planning, funding green banks, and cleaning polluted air, and all of it in the service of environmental justice.

If a tree stands in the forest, and there’s no economist around to tabulate its benefits to humans, do those benefits still exist? For government agencies, the answer has long been, “No.” But the Biden administration is poised to change that.

Last month, the Biden administration rolled out the latest piece of its comprehensive Modernizing Regulatory Review initiative: a proposed guidance on how to account for “ecosystem services” in regulatory analysis. As I explained in my comments, if implemented well, this guidance will reinforce the administration’s broader efforts to reprogram an important step in the rulemaking process known as regulatory analysis so that it provides a fairer and fuller picture of the impacts of planned rules.

In three weeks, the U.S. Supreme Court starts its 2023 Term. There are two blockbuster cases on the docket. In one case, the issue is whether to overrule the Chevron case, which has been foundational to administrative law for the past four decades. In the other, the issue is agency power to sanction violations of the law. Given the Court’s conservative supermajority, there’s a real threat to the power of agencies like the U.S. Environmental Protection Agency (EPA) to issue regulations and enforce the law.

In the coming years, key decisions that will greatly impact state efforts to address climate change will be made by agencies that the public often thinks very little about. Public utility commissions (PUCs) are state agencies that regulate energy markets. They set electricity prices, plan energy resource development, and oversee the utility providers within their states. For decades, these agencies have advanced an energy policy that is informed by a straightforward need to provide dependable electricity to consumers at fair rates.

When French political philosopher Alexis de Tocqueville toured the United States nearly 200 years ago, he famously marveled at the degree and diversity of the American people’s civic engagement. Through a recent, little-noticed guidance, the Biden administration is now working to further infuse this unique tradition into one of our nation’s most important governing institutions: the federal regulatory system. The White House guidance’s recommendations will be essential for empowering ordinary people to shape the policies we care about, whether it’s keeping our drinking water clean or protecting our wallets against predatory banks. Despite this, the regulatory system is not yet achieving its full democratic potential.

Under the Biden administration, the U.S. regulatory system is experiencing a welcome renaissance, changing the way agencies see their role in society and the relationship between policymaking and public participation. However, the regulatory process is still providing outsized opportunities for large, sophisticated "repeat players" to shape our public protections because of the “two-tiered” nature of public participation that currently exists.