Deconstructing the Environmental State: Administrative Law’s Challenge for Climate Justice in the U.S.

Keywords: legal geography, climate justice, energy, administrative law
Abstract Type: Virtual Paper Abstract

Abstract

In an analysis of the liberal state’s role in climate justice struggles, geographers Geoff Mann and Joel Wainwright ask, “Can the state save us?” They believe it can’t—or won’t—and instead advocate turning away from the state toward indigenous and other social movements.

While remaining agnostic on the question of whether the state can “save” us, this paper argues that the state will remain a critical zone of engagement for climate justice. This becomes clearer when the state is understood not abstractly but concretely—as the modern administrative state. This paper claims that climate justice activists and scholars should engage more directly with administrative law and policy, especially given the conservative legal movement’s increasingly successful attacks on regulation—including environmental regulation.

This paper demonstrates the importance of administrative law for climate justice by analyzing West Virginia v. EPA, a case recently decided the U.S. Supreme Court that concerns the Environmental Protection Agency’s power to regulate greenhouse gases under the Clean Air Act. Through a revival of an old legal doctrine (the nondelegation doctrine) and the invocation of a new one (the major questions doctrine), challengers in the case hoped to hollow out the Clean Air Act, thereby stripping the EPA of its most successful tool for combatting climate change. By centering this key legal battle over the administrative state, the paper puts readers in a better position to analyze the role of the state in achieving climate justice.