Vol. 52-2 Recent Publication

Recent Publication

Shalanda H. Baker, Anti-Resilience: A Roadmap for Transformational Justice within the Energy System, 54 Harv. C.R.-C.L. L. Rev. 1 (2019).

At the core of American legal efforts to advance notions of equity and justice within the environmental sphere lies the ‘environmental justice movement’. The environmental justice movement has evolved alongside the landmark American environmental statutes.[1] Initially a product of legal momentum in the 1960s, the major environmental statutes aspired to new balances between continued economic prosperity and the protection of the environment.[2] The National Environmental Policy Act (NEPA) and the innovative media-based statutes, including the Clean Air Act (CAA) and the Clean Water Act (CWA), were passed relatively swiftly and cohesively in this same early period.[3] 

            As scholars have detailed, initial aspirations to design this balance sought to remedy major equity concerns, including about the material distribution of environmental benefits and burdens.[4] These initial equity aspirations were powerfully informed by lenses of race and class.[5] Yet, these initial equity aspirations were, “ultimately, jettisoned”.[6] Instead, with apparent evidence of diminishing inequality and a growing interest in substantially deregulating major economic sectors, many equity dimensions were discounted.[7] 

            In response to these cuts and to the increasing criticism of arguably inequitably distributed environmental burdens, the US environmental justice movement has grown more prominent. Despite initially lacking major political power and a presence within elite circles, the environmental justice movement continues to advocate for the inclusion of policies to remedy what some activists see as concerning government endorsement of environmental oppression.[8] 

Thus, especially within energy infrastructure planning and the regulation of hazardous materials, the environmental justice movement remains a primary legal, political, and policy framework by which efforts to address environmental inequity are framed.[9] The movement has accordingly found some success—especially in liberal political efforts—incorporating equity concerns within new and existing regulations.[10]

            However, just as the movement persists, as does its struggle, and today parallel literature has developed on ‘energy justice’. The passage of major legal evolutions within environmental, energy, and, more recently, climate law, remains a deeply contested political atmosphere.[11] Increasingly divisive interest groups, political factions, and long-standing economic entrenchment threaten ‘advancement’ by any one movement.[12] Parties to disagreements are increasingly aware of energy law’s sweeping potential to determine economic goals, infrastructure policies, and the flow of financial benefits. This sweeping potential makes energy law-making deeply contested.

            It is in the context that a 2019 publication by Shalanda H. Baker—currently the deputy Director for Energy Justice and Secretary’s Advisor on Equity in the United States Department of Energy but, at the time of publication, Professor of Law, Public Policy and Urban Affairs at Northeastern University School of Law—contributes a theoretical perspective worth noting in the growing ‘energy justice’ literature. Baker’s central thesis revolves around a perspective of ‘anti-resilience’. This perspective develops from a creative argument. 

First, Baker notes that concepts of resilience are increasingly incorporated into energy transition and climate change law-making efforts and frameworks.[13] She traces the history of this incorporation, stemming from concepts of ecosystem resilience to external forces, and evolving into increasingly common sociological and legal formulations of resilience.[14] In these sociological and legal formulations, resilience becomes a “normative good” to be “sought after,” something which reflects a system’s, a community’s, or an infrastructure’s capacity to weather adverse forces and “bounce back” to its prior condition.[15] 

Yet, Baker argues, these subtle invocations of resilience concepts—growing within energy transition and climate change law-making—may inadvertently lead policymakers to “obfuscate” important questions regarding the state of energy-based inequity today.[16] Baker argues that when policymakers uncritically incorporate concepts of resilience as a normative good within legal strategies, they may fail to interrogate subtle dynamics of oppression in existing governance models.[17] In this view, concepts of resilience, while importantly reinforcing a need for strength and recovery potential in vulnerable components of society and infrastructure, nevertheless incorporate a certain acceptance of an arguably inequitable status quo. This status quo, in the energy justice movement’s view, does not exhibit an equitable distribution of benefits and burdens flowing from the ownership of energy resources.[18] In Baker’s view, then, resilience framing deserves greater scrutiny in contemporary law-making efforts. 

One of the most unique elements of Baker’s analysis is its invocation of a historical analysis recently developed within the ‘energy democracy’ movement.[19] In this historical perspective, while today most literature on energy transitions centers around contemporary transitions from fossil fuels to renewable energies, the energy democracy movement views today’s circumstances as one of a series of major industrial transitions.[20] Instead, efforts today to address climate change and manage energy transitions should, in this view, be significantly informed with the lessons of a precursor industrial energy transition, from the Transatlantic Slave Trade to industrialised fossil fuels.[21] 

In this historical reanalysis, the Transatlantic Slave Trade, especially as evolved in American plantation colonialism, saw the first industrial-scale transformations of matter—the “essence of energy”[22]—through the dominated extraction of labor from colored bodies. Using slave labor to transform land, slave economies facilitated race-based governance structures and the colonization of the American continent, thereby consolidating surplus wealth at unprecedented scales.[23] Yet, this view argues, when fossil fuel engineering began to displace slave labor, underlying race-based systems of governance were retained, themselves “resilient” to this initial energy transition.[24] Scholars such as Myles Lennon have argued that, in this way, “the colonial apparatus transformed energy—the ability to change matter—into a commoditized form that made certain lives not matter.”[25]

The central impetus of this perspective on energy justice, then, is to prevent the continuance today of allegedly oppression-based governance and economic models through the upcoming energy transitions to lower-carbon economies and energy infrastructure. In Baker’s view, energy policy represents a legal mechanism with potential to interrogate this alleged underlying dynamic.[26] Indeed, energy democracy activists treat energy policy as a mechanism for the legal reorganization of economic benefits related to energy-based wealth.[27] Energy democracy thus aspires to link “intersectional activism and the technocratic realm of electricity grids and markets.”[28]  Baker’s ultimate vision would see that communities will regain “some measure of control of the energy and environmental resources around them,” access “economic opportunities outside of the colonizing energy industries within their communities,” and incorporate local renewables “through a community-mediated mechanism that reflects the will of the people impacted by the energy system.”[29]

Through an analysis of state and federal energy policies and proceedings, including net metering policy, community energy policy, and Federal Energy Regulatory Commission proceedings on the role of resilience in the nation’s energy grids, Baker argues that such policies embody under-utilized opportunities to facilitate this transferal of energy-based wealth to under-resourced communities.[30] For Baker, such policies, when focused through a lens of “anti-oppression,” could play a prominent role in assisting communities that she describes as ‘sacrifice zones’, such as her hometown of Port Arthur, Texas, which in her view face disproportionate environmental burdens from fossil fuel infrastructure.[31] Baker views her work as “resisting the obfuscation” of entrenched inequity and “engaging in a politics” of transformation, thus positing a theoretical perspective with dimensions in arguably both a transformative politics and a radical epistemology.[32] 

Yet, Baker’s arguments are susceptible to substantial criticisms that may undermine the insight’s potential durability and effect within energy and climate law-making. In particular, as climate and energy policies remain a deeply contested territory, such “transformative” policies centered around an economic redistribution of energy’s benefits are likely to implicate deep veins of political contest, interest groups dynamics, industry trends, and constitutional matters. On the one hand, the movement’s aspiration for transformation risks asking for nothing less than equality of energy’s benefits across American society, and thus the movement may, for some, ask too much. On the other hand, insofar as the movement dreams of economic and political upward mobility largely while retaining today’s core economic and political structures, the movement may, for some, ask too little. Simultaneously, then, the imaginative nature of Baker’s vision arguably makes it politically unrealistic, while a hesitancy to envision an even more radical future may risk undermining, to some, the movement’s conceptual cohesion. Both criticisms may ultimately undermine the movement’s legitimacy, persuasiveness, and potential to achieve durable legal influence.

This acknowledged, there remains something important that readers can undoubtedly retain from Baker’s rigorous analytical exposition, regardless of whether readers agree with her ultimate positions. The recognition that concepts of resilience are often based in an attachment to an a priori state of affairs—which may be uncritically accepted as normatively good—provides policy makers with an additional encouragement to reflect on the values and assumptions guiding their strategies. In this light, Baker’s work makes a considerable contribution to the energy justice literature because it further attunes energy policy to matters of equity and justice—matters which, from many sides, are increasingly regarded as societally worthwhile. Whether through continued historical reflection, analysis of economic distributions, or novel conceptual policy arguments, the energy justice literature continues to provide a unique and interesting perspective on energy policy-making, especially its energy transition dimensions. 

Finally, possible connections to other parallel movements shaping American society, such as Black Lives Matter and renewables proliferation, may make it such that a vision to ‘democratize energy’ may find a foothold in the legal efforts of activists and technocrats alike. There is a deepening recognition that climate change places great legal pressure as much on administrative and property law as traditional environmental and energy law.[33] In this regard, energy policy’s sweeping potential makes it a possibility that climate-driven energy transition policy “traverses a diversity of hopeful terrain that makes it a better site for transformative politics” after all.[34] 

Like many components of energy policy today, though, much will depend on the real decisions made in upcoming years. To what extent Baker’s arguments will be incorporated into upcoming energy policy efforts is, thus, unknowable. Nevertheless, the article’s contribution to energy policy-making literature is rigorously articulated, thoughtfully advanced, and worth considered reflection.

Aaron Ramcharan is a J.D. Candidate, Class of 2022, The University of Texas School of Law and LL.M. Candidate in Global Environment and Climate Change Law, Class of 2022, University of Edinburgh Law School. Aaron joined TELJ in Fall 2020 and serves as Senior Editor. He was born in Edmonton, Alberta, Canada and studied Philosophy at Reed College in Portland, Oregon. After graduation, he will join Baker Botts LLP.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.