This two-part post is part of a series related to Teaching Environmental Law in Context, a recent book by Member Scholars Rebecca Bratspies and Carmen Gonzalez.
In Part 1, I provided an overview and some of my topline reactions to Rebecca Bratspies and Carmen Gonzalez’s excellent new book, Teaching Environmental Law in Context. In this part, I explore some specific environmental laws that Rebecca and Carmen include in their text and their creative approaches to teaching them.
The Clean Air Act. When I start the Clean Air Act, I start with the statute. More specifically, I start with National Ambient Air Quality Standards (NAAQS). Right away, my students are hit with a crazy acronym! And, as we know all too well, that discussion must begin with a pronunciation guide: “Say ‘N-æ-x” like you’re from New Jersey, not “N-ah-x” like you’re the Queen of England, or you’ll sound like you’re talking about oxides of nitrogen (or NOx), which, we explain meekly, has its own NAAQS — what we might call, à la Dr. Suess, “a NOx NAAQS.”
By the time I’ve gone through all of that, they’re well on their way to REM sleep, at which point I launch into the (admittedly crucial and yet soporific) distinction between ambient standards and emissions limits, which launches us directly into a discussion of units of measurement — like “parts per million” (“ppm”) or (even worse) “micrograms per cubic meter,” the abbreviation for which uses a Greek letter, for god’s sake(!), and not one of the familiar ones, like alpha or beta. Any hapless student unlucky enough to open their eyes during this exegesis will undoubtedly be swiftly reminded of the reasons they decided not to pursue a medical degree.
What do Carmen and Rebecca do?
They begin with a simple PowerPoint slide presenting the soaring prose of one of the state constitutional provisions guaranteeing the right to clean air. (There are several to choose from, but being in Philadelphia, I will choose the Pennsylvania Environmental Rights Amendment: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”)
With the slide displayed, they first ask the students to guess how many times they breathe in a minute (or, alternatively, to try holding their breath for a minute). Then they pose two simple but evocative questions: Should everyone have a right to breathe clean air? If not, how should access to clean air be allocated? Carmen and Rebecca explain that “[t]his framing generates a vibrant discussion of how (whether) economic development, environmental protection, and public health concerns about air quality can be balanced and who should do this balancing,” along with issues of scientific uncertainty and precaution. I can certainly imagine it does and can’t wait to give this a try next fall.
The Toxic Substances Control Act. Here again, I start with the statute and the distinction between risk assessment and risk management — another crucial idea, another opportune moment for worn out students to catch some shut-eye.
How do Carmen and Rebecca start? With the amazing Bill Moyers documentary, Trade Secrets. In this stirring 90-minute film, Moyers interviews a man dying of cancer as a result of exposure to vinyl chloride in a workplace where his employer lied to him and his co-workers about the chemical’s health hazards. Moyers shows documentary evidence from the ‘50s, ‘60s and ‘70s demonstrating that the chemical industry knew of vinyl chloride’s carcinogenic effects but conspired to hide the truth. The film tells a similar story about other chemicals as well, including benzene (of particular interest to those of us who teach the Supreme Court’s benzene decision).
I can well imagine that this is a highly effective way of setting the stage and giving students the motivation they need to do the hard analytic work of digging into distinction between risk assessment and risk management, the language of the 1976 statute, the 1991 Corrosion Proof Fittings decision that hamstrung EPA’s ability to protect the public from dangerous chemicals for decades hence, and the trade-offs Congress made in attempting the fix the broken system in the 2016 Lautenberg Amendments. And Trade Secrets is just one of a whole host of valuable teaching resources Carmen and Rebecca have gathered together in this wonderful book.
The Resource Conservation and Recovery Act. This is a statute I’ve avoided teaching for 25 years out of pure fear, but I took a peek at how a representative sampling of casebooks start their RCRA discussions. Not surprisingly, they start with landfills and how various public health problems, like toxins leaching from piles of trash into groundwater, prompted Congress to pass RCRA, directing EPA to set standards for the operators of landfills — making sure they have adequate liners and so forth. Here’s the problem: In 25 years of teaching, I have yet to meet a student who ever worked as a landfill operator.
What do Carmen and Rebecca do?
They seize the day! To them, RCRA is not a dull chore to be dreaded, but an “opportunity!” In their words, “RCRA offers the opportunity to start class discussions with something personal and immediately recognizable: The daily generation and disposal of waste.” In that vein, they assign each student to keep a 24-hour waste diary. They tell them to track everything they throw away in a day and where they dispose of it. This generates interesting discussions about where trash in their locality ends up and “opens space to discuss the connections between consumer culture, product design, and waste generation, . . .lays the groundwork for a discussion of individual versus systemic responsibility, . . . and provides an opportunity for students to consider how a different legal regime might instead prioritize upstream product design, extended producer responsibility, and circular economy principles.”
Amen. In an era in which frustration with planned obsolescence has reached a boiling point and politicians are winning seats in Congress by talking about their constituents’ frustration with throw-away appliances and advocating for a right to repair, these are the framings that will capture students’ imaginations. Again, Carmen and Rebecca have zeroed in on what students actually want to know.
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I have always believed that social justice issues are woven throughout all of environmental law, and while I tell my students that, I’ve struggled to find way to help them see and feel it for themselves. In this excellent book, Carmen and Rebecca have given me the tools to do just that. They’ve shared a wealth of incredibly creative and compelling ways to bring these aspects of environmental law to the foreground. Environmental law classrooms across the country (and ultimately the profession itself) are going to become better — more inspiring, more energizing, and more eye-opening — because of their efforts.
