73 Am. U. L. Rev. 343 (2024).

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Abstract

While corporations have long grappled with environmental issues, environmental justice is different. Corporations regularly manage compliance with environmental permits over a polluting facility’s long lifespan. Justice issues, however, are a fast-growing space for corporations as they wrestle with employee, government, customer, and public demands to step up for the communities that are directly impacted by the pollution their facilities produce. This Article explores the relationship between corporate polluters and impacted communities, with a focus on private-ordering tools like contracts. Such a focus enriches environmental justice law’s traditional focus on government decisionmakers, moving instead to corporate decision-making about where, how, and what kinds of polluting facilities impact communities. Scholars have long recognized “community benefit agreements” and “good neighbor agreements” as contractual mechanisms that can drive forward corporate decision-making on polluting facilities in specific environmental justice communities. Yet, they also rightly raise concerns that these agreements suffer from problems of unequal bargaining power, negotiation implementation costs, and unenforceable terms. This Article asserts that environmental nonprofit organizations are in the best position to meet corporate counsel at the contract drafting table. Environmental nonprofit organizations have environmental technical expertise, access to large grant/philanthropic funding, an ability to provide pro bono legal representation to communities, and a governance structure that allows for mission-oriented work. In short, this Article calls on environmental nonprofit organizations to develop environmental justice transactional practice groups to supplement their public-law administrative focus with private ordering tools. 

* Seema Kakade is Professor of Law at the University of Maryland Francis King Carey School of Law.