This post is part of a series related to Teaching Environmental Law in Context, a recent book by Member Scholars Rebecca Bratspies and Carmen Gonzalez.
I wish to confirm that for environmental law teachers new and old — whatever our theological leanings — Rebecca Bratspies and Carmen Gonzalez have created a godsend.
In a time of existential national turmoil, with previously solid legal ground as well as a host of mileposts being undermined at every turn, here is a welcome book for teachers. Teaching Environmental Law in Context reminds us that what we strive to do is essential, and Rebecca and Carmen’s lively, intricately detailed how-to manual shows how we can still do it well despite the current abysmal context.
Buck up. They are helping us navigate through a slough of despair.
On one hand, knowingly or unknowingly, Bratspies and Gonzalez are channeling our guild’s original Yoda, Joseph Sax. What Sax taught us was to emphasize the critical role of people impacted by environmental distresses in catalyzing policy and legal responses. And he did this by reminding us continually to “First, tell the story!”
From the start, we need to bring our students together into a recognition of the smell, the hurt, the risks that are being imposed on real people by the power of corporations and systems that allow them to create short and long-term environmental problems. Part of Sax’s approach was to make each puzzle come alive in human terms. Those of us who listened could imagine ourselves in those impacted places — a forest being desecrated, a low-income hotspot population being hit with cumulative levels of sickness and death.
Carmen and Rebecca make Sax’s “tell the story” lesson manifest. Sometimes they actually tell the story in brief and vivid terms, reminding us how a certain problem arose and was confronted. The book is filled with images and suggestions for making the structures and calculations of legal approaches to environmental protection engaging and tangible.
In the toxics field, for instance after noting the efficacy and limitations in some of the early cases, they bring us vivid excerpts from Rachel Carson’s work and then suggest a Bill Moyers video. They provide significant legal and non-legal resources into which our students who are bitten by a subject can dig further. Nice.
Carmen and Rebecca also pick up on another important Sax-ian theme. In his first environmental book, Defending the Environment: A Strategy for Citizen Action, Joe Sax emphasized that citizen activism was always and everywhere necessary to open up the truncated perspective of the people and entities who cause environmental harm. Joe reminded us never to think of just one correct avenue of environmental protection in a legal response: don’t forget the potential application or analogies from tort law; don’t ignore the multiple different ways a statute can be constructed to be adaptable and successful over time.
Rebecca and Carmen channel these themes in the advice they offer us. Throughout the book, they note the constant pushback when citizens attempt to bring a broader and longer-term environmental awareness to the short-term profit and political calculus that so fundamentally shapes the world. Again and again, Rebecca and Carmen describe how the public laboriously forced protective regulation into the books, only to have the actors that necessitated those protections immediately begin efforts to undermine or nullify them. It is an exhausting minuet of effort and resistance, fights for better governance endlessly evolving and presented anew.
But responding as they must to the horrifics of the current ongoing putsch against civil governance and the rule of law, Carmen and Rebecca also integrate a further reality, one that Joe Sax typically avoided. Their text continually analyzes the systemic (and often corrupt) political forces that underlie environmental harms. Joe rarely did that. When Joe talked with a group of corporate leaders or compromised civil servants, he spoke as though everyone in the room cared about optimizing the welfare of people, civil society, and the planet. He resolutely thought and spoke from a higher position about the tools that good-hearted humans could and should be applying to the problems that were arising in our world. Rebecca and Carmen are more critical — as willing to call out corruption and bad actors as they are to highlight the good ones.
Sax shaped how a law school environmental law course should be presented to law students. Sax started with the common law and never put it aside. That allowed him to approach the complex diversity of environmental statutes and structures with a “taxonomy” of environmental statutory contexts, approaches, and designs. Carmen and Rebecca outline a similar teaching approach. Adopting their strategies and exercises in the classroom highlights an analytical process that equips students to address the daunting welter of different present and future statutes that no course can cover individually.
Finally, in 1972 at Michigan Law, Sax also helped launch a course in which pairs of 3L students were trained to design and teach their own semester-long undergraduate course in environmental protection law. I’ve had the honor and burden of proselytizing this EL-T course at a dozen law schools, giving 300 law students a unique teaching experience, and thousands of undergrads a serious course in thinking and citizenship, as well as the legal process of civil governance.
Today, the tumultuous legal landscape presents a grim prospect for our law students, but perhaps even more so for our EL-T undergrads, who lack a sense of the historic structures and doctrines of legal process, but have a frightening sense of what is about to descend upon their generation. Teaching Environmental Law in Context is particularly helpful here. We must shape our efforts to teach students with our recognition that the more they discern what is befalling our national governance, the more they are likely to be disheartened. For both our law school audience and for the undergraduates who choose to study environmental protection law, this book offers a practical, responsive agenda:
- Explore and understand environmental law as it existed until recently.
- Recognize and understand what has been done to environmental protection and our national rule of law in the recent years of putsch oligarchy — and the particular legal twists that have been used to accomplish this.
- Emphasize how, in years hereafter, a resurgence of rational democratic governance and environmental protection can be addressed and accomplished by law.
Bratspies and Gonzalez provide unique approaches, structures, and resources for us all to employ, in this our societally imperative existential endeavor.
