Rebecca Bratspies: Teaching Environmental Law Through History, Justice, and Power – Reflections on ESIL Webinar 3

Rebecca Bratspies: Teaching Environmental Law Through History, Justice, and Power – Reflections on ESIL Webinar 3 – Webinar 3 · Reflection 2/9

Rebecca Bratspies began her contribution to the September 23, 2026 – European Society of International Law (ESIL) Interest Group on European and International Rule of Law Webinar, entitled From Environmental Law in Context to Comparative Environmental Governance: Justice, Sustainability, and the Rule of Law, with the purposes of environmental law: the people who breathe the air, drink the water, and live on the land. In a period of uncertainty for environmental protection, she and Carmen G. Gonzalez had written Teaching Environmental Law in Context as a constructive contribution to the future of the field.

Her presentation organized that contribution around three inquiries. The first looks backward: why do we have the laws we have, what problems were they designed to solve, and what institutional constraints shaped them? The second looks forward: what challenges require a response today? The third asks what belongs at the center of environmental law and how that choice changes the interpretation and enforcement of legal rules.

History as a tool for legal understanding

Rebecca used the 1948 Donora smog disaster in Pennsylvania to illustrate the value of historical inquiry. Examining the origins of air-pollution regulation can help students understand both the urgency that produced legal change and the questions of unequal exposure that remain relevant. Her account linked the history of environmental protection to the position of Black and low-income communities.

This method also makes regulatory achievements visible. Students who have not experienced the severe smog of earlier decades may struggle to appreciate what environmental statutes have achieved. A historical approach can recognize those accomplishments while asking whether existing tools can address cumulative harms, continuing environmental injustice, and climate change.

That combination matters. Understanding a statute’s origins gives students a basis for evaluating its current operation. It also makes clear that legal arrangements emerged from choices, conflicts, and constraints that can be examined rather than treated as inevitable.

Following one problem across several legal fields

Rebecca described the book’s teaching exercises as a practical way to connect these questions to doctrinal learning. Concentrated animal feeding operations in North Carolina recur across the chapters on torts, air pollution, water pollution, and waste handling. Each return allows students to examine a different legal mechanism while continuing to consider the same communities and environmental burdens.

The repeated case study can make fragmentation visible. A problem that appears manageable within one regulatory category may look different when students consider the combined

effects of several activities and legal regimes. The exercise asks why law fails particular communities and which responses might improve their protection.

This is a way to deepen doctrinal competence through context. Students still learn statutes, legal tools, and the skills needed to use them. They also learn to ask how those tools fit together and what the boundaries between them leave unresolved.

Questioning the starting point

Rebecca’s response to the discussants developed a further theme: who defines the problem that environmental law is supposed to solve? Different starting points produce different legal priorities. An inquiry centered on an economically efficient level of pollution raises different questions from one centered on a baseline of protection for people and other living things.

She also identified an asymmetry in the treatment of the status quo. Existing illness, contamination, and inequality may require little explanation, while efforts to change those conditions must satisfy extensive demands for economic and legal justification. The inherited distribution of environmental burdens can become embedded in the baseline against which reform is assessed.

Contextual and comparative inquiry can each expose that baseline. Historical examination asks how it was created and whose interests shaped it. Comparison reveals that other institutions and legal systems organize protection differently.

Power, voice, and legal education

In the closing round, Rebecca called for greater recognition that law is rooted in power. She emphasized the importance of examining whose voices are absent and whose accounts of the world receive institutional attention. Drawing on her work with schoolchildren, she described questions about untold stories, the beneficiaries of dominant stories, and the location of power.

Her intervention underscored the importance of teaching environmental law not simply as a collection of doctrines and regulatory instruments, but as a field shaped by historical choices, unequal distributions of power, and competing understandings of environmental harm.

This approach also invites students to question why certain environmental conditions are treated as normal, why particular communities bear disproportionate burdens, and how existing legal arrangements may reproduce inequalities even when they appear formally neutral.

From problem definition to epistemic governance: The Chair’s perspective

As Chair, Moderator, and Discussant, I approached Rebecca’s contribution through a broader set of questions that I had developed in preparing the webinar’s Speaker and Discussant Guide, drawing on my ongoing research on epistemic governance, institutional authority, and the legal construction of knowledge. These questions provided part of the conceptual framework through which I sought to connect the speakers’ contributions to wider debates about environmental governance, legal legitimacy, and the authority to define and assess regulatory problems.

These questions concern not only how environmental law responds to established problems, but also how those problems become defined, recognized, and translated into legal and regulatory priorities in the first place.

Who has the authority to define an environmental problem? Whose knowledge and experiences count in identifying harm? Who determines which risks warrant legal intervention? And why are certain existing inequalities accepted as neutral baselines while efforts to change them require extensive justification?

These questions reflect a central concern of my research on epistemic governance: the ways legal and regulatory institutions determine what counts as authoritative knowledge, which forms of expertise receive recognition, and how particular understandings of risk, harm, and public interest acquire institutional legitimacy.

Rebecca’s analysis of historical injustice, problem definition, and the normalization of environmental burdens provided an especially valuable perspective through which to explore these questions.

Her contribution approached these issues primarily through environmental legal history, pedagogy, and the relationship between law and power. My framing sought to connect those insights with the broader institutional and epistemic processes through which environmental problems are identified, evidence is evaluated, regulatory priorities are established, and particular forms of knowledge become authoritative.

The relationship between these perspectives was therefore not simply one of agreement, but of complementary approaches to a shared problem: how law both reflects and structures the distribution of power, knowledge, and authority.

Our exchange illustrated how contextual environmental legal education and comparative environmental governance can illuminate not only what legal rules require, but also how institutions determine which problems deserve attention, whose experiences inform legal responses, and which alternative arrangements remain possible.

In this sense, the discussion also connected Rebecca’s work to a wider question running through the ESIL webinar series: who decides what counts as knowledge, and with what consequences for justice, institutional accountability, and the rule of law?

Rebecca’s contribution offers a practical agenda for environmental legal education: teach history alongside doctrine, use recurring problems to reveal fragmentation, assess the purposes of regulatory tools, and ask how power shapes both law and the stories told about it.

Event information and selected bibliography. Teaching Environmental Law in Context.

Keywords/tags: ESIL, environmental law, environmental justice, comparative environmental governance, rule of law, legal education, institutional accountability, legal pluralism, epistemic governance

This post forms part of the ESIL Interest Group on European and International Rule of Law Webinar Reflections series, which offers accounts of individual contributions and the wider intellectual exchanges generated by each event.

Paolo Davide Farah, Paolo Farah

Explore the Complete Webinar 3 Reflections Series

ESIL Interest Group on European and International Rule of Law Webinar Series

Webinar 3 — From Environmental Law in Context to Comparative Environmental Governance: Justice, Sustainability, and the Rule of Law
September 23, 2026

This nine-part series documents the contributions and intellectual exchanges developed during Webinar 3, examining environmental justice, comparative environmental governance, legal education, sustainability, institutional accountability, and the rule of law.

Reflection 1/9 — Environmental Law, Justice, and Comparative Governance: Reflections on ESIL Webinar 3
[Link forthcoming]

Reflection 2/9 — Rebecca Bratspies: Teaching Environmental Law Through History, Justice, and Power
[Link forthcoming]

Reflection 3/9 — Carmen G. Gonzalez: Environmental Justice in Every Topic, Every Tool, and Every Statute
[Link forthcoming]

Reflection 4/9 — Tseming Yang: Comparative Environmental Law, Legal Cultures, and Learning Across Systems
[Link forthcoming]

Reflection 5/9 — Sara K. Phillips: From Legal Mechanisms to Practical Influence in Environmental Governance
[Link forthcoming]

Reflection 6/9 — Mekonnen Ayano: How Much Distance for Comparison, How Much Proximity for Justice?
[Link forthcoming]

Reflection 7/9 — Chinonso Tansi Anozie: Humanizing Environmental Law and Connecting Sustainability to Energy Justice
[Link forthcoming]

Reflection 8/9 — Paolo Davide Farah: From Comparative Environmental Law to Comparative Environmental Governance—Beyond Rules, Across Institutions and Contexts
[Link forthcoming]

Reflection 9/9 — Paolo Davide Farah: Who Decides What Counts as Knowledge? Environmental Justice and Epistemic Accountability
[Link forthcoming]

Webinar information, speakers, books, and selected bibliography:
https://paolofarah.wordpress.com/2026/09/05/european-society-of-international-law-esil-interest-group-on-european-and-international-rule-of-law-webinar-series-webinar-3-from-environmental-law-in-context-to-comparative-environme/

The ESIL Interest Group on European and International Rule of Law Webinar Reflections Series is conceived, coordinated, and edited by Professor Paolo Davide Farah, Chair of the Interest Group and Chair and Moderator of the Webinar Series. The reflections document and critically engage with the contributions of Rebecca Bratspies, Carmen G. Gonzalez, Tseming Yang, Sara K. Phillips, Mekonnen Ayano, Chinonso Tansi Anozie, and Paolo Davide Farah, recognizing their respective scholarly perspectives and the wider intellectual exchanges generated during the webinar. The series seeks to preserve, develop, and disseminate these contributions as part of an ongoing international scholarly dialogue. The reflections are editorial accounts of the discussions and do not necessarily represent the official positions of the Interest Group or the individual participants.

The recording is now available here: