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Environmental Justice

Summary and Keywords

Environmental justice brings together two of the most powerful social movements of the late twentieth and early twenty-first centuries, environmentalism and civil rights. Despite the success in reducing pollution and improving environmental quality in many areas, the reduction of race- and income-based disparities in environmental conditions, such as the levels of pollution to which individuals are exposed, has seen limited progress. Minority and low income communities continue to bear the brunt of environmental burdens. The idea of environmental justice also helps clarify the ethical issues underlying climate change and compels action to reduce the threat even in the face of uncertainties and to help poor nations with the costs of adapting to disruptive climate change. A major challenge in environmental justice is deciding how to define the problem. Five options for framing the issue of environmental justice capture most of the approaches taken by advocates and scholars. These are the civil rights framework; theories of distributive justice, fairness, and rights; the public participation framework, social justice framework, and ecological sustainability framework. These frameworks are not mutually exclusive. They overlap considerably and proponents of one primary framework may rely on elements of others as they frame the issues. Advocates of environmental justice will find that elements of each can contribute to their goal. No one framework is sufficient, but in recognizing where those with other views are coming from, we can develop opportunities for creative solutions that bring together alternative approaches.

Keywords: civil rights, environmentalism, environmental justice, social justice, social movement

Introduction

Environmental justice brings together two of the most powerful social movements of the late twentieth and early twenty-first centuries, environmentalism and civil rights. They are particularly potent forces because of the compelling moral arguments they convey and because of the ways in which they complement each other. While much progress has been made in reducing pollution and improving environmental quality in many areas, one of the most glaring shortcomings of those efforts is the limited progress in reducing race- and income-based disparities in environmental conditions such as the levels of pollution to which individuals are exposed. Minority and low income communities continue to bear a disproportionate share of environmental burdens. Civil rights and social justice advocates recognize the importance of addressing characteristics of the environments in which people of color and poor families live that contribute to poor health, reduced economic opportunity, and a diminished quality of life.

Expanding and fusing the agenda of these two movements is a compelling political goal, but it is also problematic, in several ways. Environmental justice is rooted in claims of rights that represent powerful political obligations. In a democracy, rights invoke corresponding obligations and duties that outweigh majoritarian interests; minority rights are to be vindicated even if the majority does not wish to pay the costs or have its options limited. But the power of these claims of rights may be diluted by their too frequent invocation. An inflation of rights might weaken the moral power that rights represent. There is also the inevitable need to set priorities, to allocate scarce financial and enforcement resources, and ensure that the most serious problems are addressed first. A broadened agenda of environmental justice can and should generate support for more resources and expanded effort, but choices of allocating resources and efforts are inescapable and tradeoffs inevitable. Conceptualizing environmental justice in ways that expand its reach while preserving its political potency and the power of its moral claims is a daunting task.

Devising solutions to environmental injustices is similarly fraught with challenges. Actions taken to improve environmental quality may not result in improved social equity, and may even exacerbate inequities. Policies that promote justice and strengthen the political power and decision making influence of people of color may not produce improvements in overall environmental conditions. Allowing indigenous groups to continue to hunt and fish on traditional lands, for example, may be a justice imperative, but may threaten the survival of endangered species or clash with plans for protecting wilderness. Pursuing the goal of environmental justice requires innovative remedies that balance and reinforce the goals of strengthening the power of politically disadvantaged communities and improving environmental quality. The inequitable distribution of the burdens and benefits of environmental protection reach well beyond the siting and pollution focus of the traditional environmental justice movement to include the extraction and management of natural resources.

A lively debate exists about the nature of the problem of environmental justice, the extent and seriousness of the risks, and the causes and underlying factors. But just as important and difficult is the question of what kinds of responses we should pursue. What are our options and how should we choose from among them? Natural resource laws and policies traditionally focus on encouraging development of resources, protecting natural systems, and ensuring the sustainability of resource development. These laws and policies are usually assessed in terms of how well they achieve these resource development and environmental protection goals and how they interact with economic goals of efficiency and growth. Environmental justice advocates argue that just as important as these environmental and economic goals, however, should be the consequences of natural resource policy decisions for societal goals of protecting individual rights, promoting justice and fairness, ensuring fair participation, and fostering social equity.

This essay seeks to develop a framework for exploring alternative ways of defining injustices related to natural resources and the environment that are found in the relevant literature and public policies, and to suggest how environmental justice can be approached from different perspectives. The literature on EJ from US scholars typically focuses on rights-based assertions of injustices in the distribution of environmental harms. More broadly, the EJ literature from the developing world centers on the lack of support for sustainable development that reaches all humankind, particularly those in the poorest regions of the world. This essay begins with a discussion of the alternative frameworks for defining EJ that comes from the United States. In order to broaden the analysis cross-nationally, the essay then turns to a brief case study of how environmental justice can help clarify some of the key issues surrounding climate change, widely viewed as the most pressing environmental and justice issue humankind faces.

Frameworks for Assessing Environmental Justice Issues

Defining Environmental Justice

Environmental justice has been defined in a number of different ways. The problem might take either of these two forms: (1) poor and minority communities are disproportionately exposed to environmental risks; and (2) poor and minority communities are less likely than others to benefit from natural resource access and development policies. Both cases are examples of injustices, primarily seen here as problems with the ways in which benefits and burdens are distributed in society.

Hazardous waste treatment and storage sites, representative of the first kind of problem, are often located in low income and marginalized minority communities because of low land prices and little political opposition. As a result, members of these communities are exposed to greater levels of hazardous emissions, odors, water contamination, and other environmental risks than those who live in other communities. Or poor people may move into areas where these facilities already exist because housing prices there are cheaper. People of color may have fewer housing choices because of discrimination and have few options other than moving into areas with higher environmental risks. There may also be in poor and minority communities less enforcement, prevention, mitigation, and other efforts to reduce environmental problems because of residents’ lack of political influence. Despite these barriers confronting minority communities, they have been increasingly successful in raising awareness of cases of disproportionate exposure to environmental hazards. African American children in Chicago, for example, chained themselves to dump trucks filled with hazardous wastes; a multiracial group in Los Angeles blocked the construction of an incinerator in their community. Tribes have protested threats to subsistence fishing and hunting from pollution from mining operations that have poisoned fish, game, and reservation lands. Cases brought in the 1990s continued to focus on toxic waste but also expanded to reach other issues. In Boston, community members protested plans to expand Logan Airport because of the impact on working-class and poor communities of increased aircraft noise. In Atlanta, environmental and community groups oppose highway projects that would increase air pollution in minority neighborhoods (Murray 2000). Despite some successes, tension remains because many in the environmental justice movement believe the mainstream environmental movement has been unwilling to give priority to remedying environmental injustices through the policy positions they take and even through their hiring and organizational practices and policies (Sandler and Pezzulo 2007).

The development of water and other natural resources in the arid western United States has been primarily aimed at politically well-connected communities, an example of the second kind of injustice. Subsidies and other policies benefit large, wealthy landowners more than small, low income farmers and ranchers. The treaty rights of tribes have been regularly violated by states and private interests who have ignored fishing, water, land, and other Native American rights in order to increase their access to valuable natural resources. In other regions of the country, advocates have raised similar concerns about the impact of projects on minority and poor communities. The plan to restore the Everglades by redirecting fresh water into the area, for example, was criticized by some members of Congress for failing to give adequate attention to the impact of the loss of agricultural water on low income and minority farmers. Members urged the Army Corps of Engineers, the agency responsible for the Everglades project in Florida, to establish a monitoring panel to represent the interests of low income and minority communities and to involve them in the implementation of the restoration project (Ferguson 2000).

A major challenge in environmental justice is deciding how to define the problem. Five options for framing the issue of environmental justice seem to capture most of the approaches taken by advocates and scholars. These frameworks are not mutually exclusive. They overlap considerably and proponents of one primary framework may rely on elements of others as they frame the issues.

The Civil Rights Framework

Environmental justice is typically viewed as a civil rights problem, with advocates suggesting remedies rooted in civil rights law and policy. In this view, minority communities are a target for siting hazardous sites because of their lack of political power. Similarly, politicians who make resource development decisions and policies that distribute benefits to politically powerful interests or violate treaty or statutory rights and agreements may do so because of the perception that there is little political cost, and considerable political gain, in ignoring these rights and commitments. Advocates of this framework typically recognize that the interactions of race, income, and political power are complex. The location of facilities may be driven by market factors, such as the price of land, access to transportation infrastructure, availability of labor, and location of raw materials; they may be located in areas where residents have less political power than in other communities; and they may even be intentionally located in minority or low income communities. Site locations evolve over time: a site may be located in an urban, working-class community. Over time, residents in this community who can afford to move to more pleasant surroundings do so, leaving poorer residents and depressed land prices. In turn, low income residents move in because of cheap housing prices (Ringquist 2000:244–7). Market factors, discrimination, and the political powerlessness of marginalized communities that have little clout in policy making decisions all contribute in complicated ways to environmental injustice (Foster 1998).

The civil rights framework is sometimes intertwined with broader notions of social justice. Robert D. Bullard, a distinguished environmental justice scholar, argues that several factors contribute to environmental injustice. These factors include inadequate concern for the procedures by which rules, regulations, and criteria are applied and the consequences for participation in these processes by minority communities; the location of meetings to inform the public; the publication of materials only in English; and the composition of decision making bodies that do not reflect the racial and ethnic makeup of the communities affected by those decisions. There are geographical concerns about the distribution of jobs and income from industrial activities and the burdens caused by the disposal of industrial wastes; communities that house the waste sites receive fewer benefits than the areas where production occurs. Social inequity is another factor that focuses on lingering racism in the US and the extent to which communities of color are seen as sacrifice zones for pollution and hazardous waste. Bullard argues that race and class are “intricately linked in our society,” but that race “continues to be a potent predictor of where people live, which communities get dumped on, and which are spared” (Bullard 1993:15).

Two competing principles might guide decision making: nondiscrimination and race-based preference. The nondiscrimination standard prohibits any consideration of race in the making of environmental, land use, natural resource, and other policy decisions. That standard raises the question of what constitutes a violation of the principle – how much difference constitutes a disparate impact? In environmental justice cases, the question may be how the environmental risk to health compares across minority and nonminority communities, or how the natural resource benefits given to minority groups compare with those provided to nonminority ones. However, the nondiscrimination principle may be too conservative and acquiescent to the status quo. In embracing it, we commit to discriminate no more. But what about the impacts already in place? Preferential treatment or a race-conscious remedy, many argue, is required to compensate for past discrimination. This may take the form of offering compensation to communities for the existing facilities in their community or the lack of access to natural resources, and perhaps preferential treatment to ensure that the risks of environmental harms and the benefits of natural resources are spread more evenly. Those decisions turn on notions of distributive justice and raise thorny issues of when, if ever, preferential treatment is no longer justified and should be ended (discussed in the following section).

The civil rights framework will likely continue to guide efforts to pursue the goals of environmental justice. But problems with this framework must be addressed. For example, should environmental justice focus only on people of color, or should impacts on low income people also be addressed? The civil rights solution may not work as well for income as it does for race. Race is well established in US constitutional law as a suspect classification, requiring heightened or strict scrutiny by courts and a showing of a compelling government interest when it serves as the basis for policy making. In contrast, federal courts do not recognize class as a suspect classification or any kind of a problematic distinction. Neither constitutional nor statutory provisions provide any basis for claims that class or income status constitutes an actionable claim. Note that some have argued that affirmative action should be viewed as a remedy for income-based disadvantage, rather than racial status, but that view has yet to gain formal legal or constitutional acceptance. If income or poverty is the ultimate root of environmental and natural resource injustices, then we need solutions that go beyond the remedies available from civil rights law.

More broadly, should civil rights be at the center of the debate over the role of government in pursuing environmental protection policies, at least for people of color? We rely on a discourse of civil rights to discuss the values and concerns that are most important to our political, collective lives. But a politics of rights makes tradeoffs difficult, because it emphasizes enforcing entitlements that claimants assert regardless of costs or competing concerns. A discourse of rights eschews the balancing that is inevitable when we have public demands that are contradictory or exceed the resources that are available. The controversies surrounding rights place into question their role in guiding public policy making. If rights are to play a transforming role in ensuring environmental justice, they will have to be thought of in different ways, not just as restraints on government, but as ways of empowering individuals, reinforcing our responsibility for each other and for the kind of society that we are part of, and asserting the moral and social responsibilities we have in common. Rights need not insulate individuals from each other, but can be part of defining membership in a political society and reinforcing shared commitments. Rights can help foster common concerns and encourage us to commit to ensuring that each person enjoys access to natural resources and environmental quality that are essential for realizing a meaningful life and enjoying real equality of opportunity.

Distributive Justice, Fairness, and Rights

Another way of framing the problem of environmental justice comes from theories of justice devised by philosophers who grapple with issues such as how to distribute benefits and burdens, how expectations of equality are to be satisfied, and what ethical principles can guide natural resource policy making. Much of environmental justice’s development is rooted in the expectations created by the idea of distributive justice. Distributive justice seeks answers to questions such as: If an equitable distribution in the location of polluting facilities or access to natural resources is the goal, what definition of equity do we use? Does equity mean the polluter pays – that those who benefit from pollution should bear the burden of disposing of the accompanying wastes? If so, then should those who consume more have more polluting facilities near them, or pay others to bear that risk? The polluter pays principle appeals strongly to a sense of fairness that links benefits and burdens. But following this principle presents numerous challenges, such as determining who bears the burdens, what those burdens are and how they should be valued, and what additional costs should be imposed on producers and purchasers. All this suggests the importance of prior knowledge of effects and the importance of environmental impact assessment and other requirements to disclose environmental harms and threats. It also makes clear the importance of pollution prevention in reducing environmental harms for all communities.

One form of distributive justice is geographic equity, which requires fairness in the physical distribution of hazardous facilities. However, such a standard is impractical. It is not likely that everyone would be exposed equally, and some will inevitably be more exposed than others. Proposals to bury wastes or ship them to other countries simply impose the problem on future generations or to those in other nations. One option in choosing where not to distribute waste is to give preference to those who have not benefited from the pollution-producing activity or who have been burdened in the past from high levels of pollution. Here, we face the same challenges faced by advocates of preferential treatment: Do we compensate actual victims of specific injustices, or do we compensate victims of general, societal discrimination? Do we compensate individuals or communities? How do we prove instances of past discrimination? How do we identify victims of societal discrimination? Are all people of color entitled to the same preference? Are low income groups similarly deserving? How do we determine which persons are in fact entitled to the benefit? Violations of principles or expectations of distributive justice also compel calculations of compensation for past victims of injustices. Should those who have benefited from access to those resources, or benefited from reduced exposure to risk, pay those who have been left out of benefits or borne risks? Perhaps so, but the calculations of who to pay and who to compensate would be complex.

One of the most prominent forms of distributive justice is utilitarianism. Utilitarianism calls for a distribution of benefits, opportunities, and burdens that generates the greatest welfare for the greatest number. It is defended from at least two perspectives. First, utilitarianism is consistent with economic efficiency; a failure to maximize benefits would be unjust, because of the unrealized potential for generating wealth and the consequential wellbeing. The goal of public policy here is to maximize the economic value of goods and services or economic utility. Second, utilitarianism is defended as egalitarian: every person’s utility or interests are given equal weight. Utilitarianism here is consistent with democratic theories of individual equality and majority rule.

Utilitarianism often shows up in environmental policy in the form of cost-benefit analysis. Cost-benefit analysis is a widely used analytic tool that appeals to commonsense notions and has deep roots in natural resource policy making (Gramlich 1990:2). The shortcomings of cost-benefit analysis and utilitarian calculations have been most prominent in natural resource and environmental law and policy. These shortcomings usually take one of two forms. First, many values cannot be easily quantified in money terms; those values that can be more precisely and unambiguously quantified and monetized will be given priority over those that are less certain. More precise economic costs, for example, may be given more weight than imprecise estimates of the value of ecosystem health, ecological services, public health, or aesthetics. Cost-benefit analysis’s bias against values that are not easily quantified can be overcome by resisting quantification and laying out in qualitative terms the values to be compared. This systematic identification of the costs and benefits of alternatives can be a very useful decision-making tool and help illuminate the consequences of policy choices, but its inability to generate an unambiguous bottom line – whether the benefits are greater than the costs – makes it less useful, at least to some users.

A second shortcoming of cost-benefit analysis is particularly important for environmental justice because it may produce unfair outcomes. A cost-benefit analysis is based on an aggregate of relevant costs and benefits, but these consequences may not be distributed equally. A facility that generates benefits to an entire community, for example, may also pose greater risks to some residents – such as those who live near enough to inhale toxic emissions – than others. More problematic is the case where benefits largely accrue to one group while burdens are primarily imposed on others. Even if the aggregate benefits clearly and strongly overwhelm the costs, it is hard to defend as fair such a mismatch between those who bear the burdens and enjoy the benefits of a particular activity. Utilitarianism does not prevent the designation of a minority of people to bear costs or risks in order for a majority of people to enjoy benefits.

Utilitarianism underlies much of environmental and natural resource law, and its consequences for how natural resource and environmental benefits and burdens are distributed have done much to spark interest in environmental justice. Other theories of justice challenge utilitarianism and suggest other ways benefits and burdens should be distributed. A rights-based theory of justice, for example, requires that no one be subjected to certain burdens or adverse impacts or restraints regardless of the overall benefits. Individuals may possess rights, such as the right to breathe clean air or have a safe environment, that trump utilitarianism. While there are no such constitutional rights, environmental laws create statutory rights and expectations that individuals will be protected from unreasonable risks or that their health will be protected with an adequate margin of safety. Even if social welfare is enhanced by concentrating risks in some areas and on some persons, the actions are unjust if they violate these individual rights.

Other forms of distributive justice suggest different definitions of egalitarianism. Perhaps the simplest notion is that benefits and burdens are to be distributed equally across all affected parties; everyone receives the same level of benefit, such as access to natural resources, and is exposed to the same level of environmental risk or pays the same cost. Alternatively, equality can mean that those who are similarly situated are treated the same, and those who are differently situated have those differences taken into account. That is, there may be some factors that justify different treatment, although there should be consistency within each category. For example, those who benefit from a risky activity should bear the associated costs. Or equality can be understood to require a minimum level of equality or access to benefits or imposition of burdens or risks. A commitment to equality may conflict with simple utilitarian calculations and suggest different distributions to different persons, according to their merit, conditions, or needs. A socialist formulation links benefits and needs: everyone is to receive the level of benefits consistent with their needs even as their contributions vary according to abilities. In contrast, a merit-based approach requires that benefits be distributed according to effort or contribution and burdens. Correspondingly, those who make only partial contribution should receive partial benefits (Paul 1995:27).

The nature of risk is a complicating but important factor here. Risks that are voluntarily assumed and represent an informed choice pose less of a problem than risks involuntarily imposed on others. For example, the choice of individuals to live on the oceanfront and voluntarily accept the increased risk of damage or death from hurricanes and other storms does not pose a challenge to this notion of distributive justice. On the other hand, a decision to live next to a toxin-emitting factory or incinerator is problematic, because it may be in only a very narrow sense “voluntary”; low income persons may have few options besides choosing to live in economically depressed areas where prices are low and environmental risks are high.

The dominant American understanding of individual rights is that rights are so important that, in the words of John Rawls, they cannot be outweighed by majority will: “rights secured by justice are not subject to political bargaining or the calculus of social interests” (Rawls 1999:25). Rawls argues that rights provide a framework that ensures individuals have the freedom to pursue their own vision of the good life, as long as they respect the similar freedom of others. Government is to remain neutral toward specific ends in respecting the capacity of individuals to choose for themselves their own beliefs and values. Liberals, following Kant, argue that society should protect rights and liberties, rather than promote “good” values. No one way of life should be affirmed or mandated, but society should be neutral in terms of what values individuals choose to live by. Individual rights are trumps that persons possess against the majority.

Rawls’s theory of justice is an alternative to the dominant role of utilitarianism in moral philosophy. But Rawls provides no clear guidelines for determining when environmental injustices have occurred or how to remedy them. His theory of justice calls for interventions to remedy environmental or other injustices that disadvantage those who are already less well off than others. Priority must be given to the status of the least well off, as long as this can be done without violating basic personal and civil liberties. People are disadvantaged by social structures for which they are not responsible. The more fortunate should only benefit from social, political, and economic arrangements if the less fortunate benefit more. But liberal or individualist theories of justice may not provide a sufficient basis for the kind of shared morality that is best suited to deal with collective problems like environmental pollution and the preservation of natural resources.

There are other forms of justice besides the distributional version that should be mentioned here because they are sometimes used to identify examples of environmental injustices and to suggest remedies. Corrective or compensatory justice seeks to compensate victims of injustices in order to restore victims to the condition they were in before the injustice occurred or make them whole, to remedy the damage inflicted, or to provide fair recompense for the injury suffered. Obviously, some harms can be remedied and conditions restored – hazardous sites can be cleaned up for example – but in many cases, where life or health has been lost, cash payments are a limited surrogate for making the victim whole. The repeated violation of treaties with Native Americans or the history of colonial exploitation, for example, may trigger demands for compensatory justice that have implications for access to natural resource policy. Compensatory and distributional justice differ fundamentally from procedural justice in their focus on outcomes and consequences.

The Public Participation Framework

Ensuring effective participation by those who are not represented well in political forums is an essential part of environmental justice. But there is no consensus over what kind of participation is required, since there are different expectations or theories of procedural fairness and justice. One standard is that a “choice, made without prior consideration of the interest of all sections of the community would be open to criticism as merely partisan and unjust” (Hart 1961:162). Justice may require the right to participate in a decision making process, the right to have one’s interests included in the analysis, or the right to be represented by others. Participation may range from commenting on proposals formulated by others to being involved in the process of generating the proposals themselves and selecting from among options.

For many, environmental justice is driven by aspirations for community empowerment, accountability of political power to those who are affected by it, and real democratic participation. For some advocates of public participation, the ultimate goal is to ensure that low income and minority communities have the opportunity to participate effectively in decision making and to ensure their views are taken into account. The emphasis is on ensuring that those who have been underrepresented in past decision making, because of racial or other discrimination, are empowered to participate fully and effectively. For others, public participation may not be aimed at remedying specific examples of discrimination but takes on a more prospective, ambitious goal of pursuing a strong, inclusive, egalitarian form of democracy that gives voice to every member of a community across a broad range of issues of importance to all members, particularly those who have lacked a strong voice.

Full public participation creates procedural, rather than substantive expectations for natural resource policy making; if fair procedures are established, and all interests represented, then the results, whatever they may be, are acceptable. This view is consistent with pluralist politics: policy making is to include all relevant interests; they have the incentive to represent their interests the best they can; and out of the competitive clash of interests emerges the public interest. But critics have long warned that interest group politics has an upper class bias, and that low income people and people of color are not well represented. Pluralist expectations can be more closely approximated, however, by empowering people through increasing their access to technical information and other resources that will ensure they can participate effectively in deliberative processes as equal participants, or at least be competitive with those who have technical resources.

Christopher Foreman argues that the real concerns of environmental justice advocates “lie in the eternal yearnings for a more democratic and egalitarian society comprised of livable communities” (1998:5). Their discourse of justice, fairness, community, and related terms clashes with the technocratic language that dominates environmental policy and the clash of environmental and industry groups that dominates its politics.

For many activists, environmental justice is mostly about accountability and political power rather than the more technical issue of environmental risks facing communities. A major reason why one simply cannot accept advocacy claims of risk at face value is that they are often anchored, ultimately, not in the dangers posed by a site or substance ostensibly at issue, but rather in a desire for transformed power relationships to be achieved on behalf of politically energized and engaged communities.

In Foreman’s view, simply holding more meetings and hearing more voices is not sufficient to produce more just distribution of environmental burdens, but may require fundamental changes in the way in which economic and political power are distributed (Foreman 1998:58–9).

One of the major debates in environmental justice is, however, whether procedural expectations are sufficient, or whether justice calls for certain substantive standards, as with the distribution of benefits and burdens discussed earlier, to be satisfied as well. But some argue that a lack of consensus in the US concerning kinds of policies and the role of government in economic and social activities may make judging policies nearly impossible. Without objective measures or widely agreed upon standards by which public policies can be evaluated, we turn to procedural values of pluralism, openness, and representation. Advocates of pluralist policy making in the US have argued that since there is often little agreement over substantive goals, the best we can hope for is to design fair processes for making natural resource and other policies. If procedural norms are satisfied, then we judge policies to be largely successful.

Defenders of the public participation solution argue that if it is truly inclusive and grants access to decision makers, it can empower people to make their own decisions, and does not rely on paternalistic policy making by government. People can decide for themselves how to balance environmental risks and economic benefits rather than having those decisions made by others. It is also attractive because it does not require policy makers to come up with a set of substantive principles that are written into national laws and are to guide all decisions, but allows participants to shape solutions that meet their specific circumstances.

Critics of the public participation solution identify a number of concerns. Critics of pluralism have emphasized that since all groups are not equal in resources and ability to shape outcomes, the result of pluralist politics is unequal and unfair (Lindblom 1977). Solutions that communities devise may be acceptable to them, but there may be spillover effects that threaten others who are not part of the decision making process. Solutions may leave out future generations, and we may decide as a society that broader institutions of governance are required to intervene to protect those interests. (This then requires another difficult assessment about how the interests of current and future generations should be balanced: do the needs of current generations outweigh those of the future?) We may decide that there are fundamental rights at play here, such as a right to a healthy environment, that people should not be allowed to negotiate away or be forced to compromise because of poverty. And negotiations may result in acceptable cost-benefit calculations for some people, who are willing to be exposed to greater risks in exchange for more benefits, while others in the community are opposed to such calculations. Advocates of pollution prevention (see below) may argue that we should not allow people to negotiate some levels of acceptable pollution, but we should all agree to accept no pollution or waste, so that producers will be compelled to prevent pollution. For these reasons, ensuring a more fair, balanced, and representative decision making process may not be enough of a solution to environmental and natural resource injustices.

The Social Justice Framework

Advocates of the social justice framework typically regard environmental injustices as a function of broader social inequity, the interaction of poverty and race, and the relative political powerlessness of low income and minority persons and their lack of influence in policy making. Environmental injustices and disparities in the benefits that flow from natural resource development are a manifestation of more fundamental problems of poverty and political and economic disadvantage, democratic inequality and lack of participation, and other manifestations of social injustices and unfairness.

For many activists, environmental justice is mostly about the fundamental distribution of political power, not the environmental risks facing communities. While this is a view shared by some advocates of more inclusive public participation, who argue that people of color are underrepresented in public decision making, the critique reaches much deeper than race to address fundamental issues of class. Social injustices include disproportionate environmental risks and lack of access to natural resource benefits, but go well beyond these to include jobs, housing, education, public services, health, and other areas where people of color and low income persons are disadvantaged. These problems are interrelated, as they are a function of racism, exploitation of the politically powerless, cultural and social practices that favor majority interests, laws that are written to benefit those who are already advantaged and can afford to invest in the political process and campaigns, and a host of other factors. Solutions to the complex problems of social justice require structural changes in political, economic, and social institutions; increased public participation in meetings is not enough. These solutions are also obviously beyond the scope of environmental and natural resource law and policy. The question here is whether there may be a modest role for natural resources law and policy in addressing these broader economic, political, and social concerns. If we can reduce environmental injustices, that is a step forward in reducing injustice as a whole, and it might inspire other efforts.

Critical legal scholars have argued that legal institutions, doctrines, and decisions “work to buttress and support a pervasive system of oppressive, inegalitarian relations” (Minda 1995:206). Law is not neutral but rather is rooted in subjective and political choices that favor the interests of dominant political, economic, and social elites. Many critical theorists argue that conventional legal principles serve to obstruct the goals of democracy and these theorists move beyond deconstructing societal practices to prescribing how law must be radically transformed to encourage the realization of participatory democracy. They have emphasized how laws rest on an underlying layer of meaning that is not objective but depends on and reflects dominant cultural and social beliefs, or at least how elites summarize those experiences and interpret them for societies as a whole.

Critical race theory is based on the experience, traditions, culture, and perspective of people of color, or at least how intellectuals try to characterize those experiences. It offers a race-conscious perspective by which legal doctrines and decisions are critiqued. Rather than color-blindness, critical race theory calls for race consciousness, analysis that is rooted in the history of American race relations, that recognizes major economic differences between white and black communities, and seeks to develop a distinctive set of legal theories and principles rooted in those differences. Part of that requires greater participation by minority scholars in the development of civil rights law, because they come from a perspective of racial oppression that gives their assessments the “authority of racial distinctiveness” (Minda 1995:172). Some critical race theorists call for the rejection of the integrationist goal of some proponents of racial equality, in favor of a more culturally diverse, contextualized set of standards that recognize the uniqueness of minority experience (Minda 1995:177). The different experiences of racial groups in dealing with problems such as disproportionate exposure to environmental hazards should, according to this view, become the base for formulating and implementing natural resources law and policy. These approaches would likely contrast with conventional ideas such as economic efficiency and rationality as the basis for determining optimal levels of pollution and suggest more of a commitment to pollution prevention and remedying the effects of past injustices.

Reducing environmental injustices can be a part of a much broader effort to address social injustices, but it is not clear that environment-related efforts will have much of an impact on these more systemic inequities. Broader efforts that address poverty and related issues may more directly get at root causes. A social justice framework also suggests a more proactive approach in empowering people to choose how to live their lives and realize their ambitions. Reducing or eliminating hazards and burdens that prevent them from exercising choices is important in itself, but it can also provoke actions that promote choice and freedom more broadly among people who have traditionally had more limited options.

Expectations created by different notions of justice do not exhaust the philosophical ideas that can serve as the basis for identifying cases of unfairness in natural resource policies and in fashioning remedies. These ideas overlap significantly with the more critical variations of social justice theories discussed below. Some environmental ethics writers suggest how environmental policy should be shaped by notions of equality among all species and commitments to a biospheric, rather than anthropocentric perspective that are reflected in ideas of deep ecology (Stone 1987). Since the focus in deep ecology is on the rights of and duties to nonhumans, the relevance for environmental justice here is indirect as these ethical theories seek to broaden our thinking about the consequences of environmental and natural resource decisions. Also relevant are critical theories rooted in ecological economics, ecofeminism, socialism, and other critiques of modern, industrial, male-dominated high consumption societies, that offer alternative visions of environmental ethics rooted in equality, nurturing, and postmodern challenges to ideas of progress and materialism (Merchant 1994; Princen et al. 2002).

The Ecological Sustainability Framework

Advocates of ecological sustainability argue that environmental injustices are sometimes a result of the way in which environmental policies are formulated and implemented. The injustices are not necessarily an intentional outcome of these policies, but, rather, are a result of political compromises, limited resources, incomplete understanding, and other shortcomings that nevertheless contribute to unfair outcomes and impacts. For example, many environmental laws have been criticized for shifting pollution from one environmental medium to another, more than reducing or preventing pollution. Politically connected individuals are often quite successful in gaining access to the political system to ensure that at least most pollution and environmental risks occur far from where they live. Their success in getting pollution moved somewhere else may produce injustices as poor and minority communities are simply late in joining the political debate over how to deal with environmental risks. It is usually cheaper, at least in the short run, to shift pollutants from one environmental medium (such as air) to another form (such as solid waste) that then pose a new set of problems and risks, often to other groups of people and other ecosystems. The traditional approach to environmental regulation has contributed to environmental injustice by its emphasis on treating rather than preventing pollution, since those efforts are, at least in the short run, usually less expensive than preventing pollution in the first place. Advocates of pollution prevention argue that there are economic advantages of reducing waste and improving efficiency. Those investments are initially costly, and if all parties are not compelled to make such investments, those who do not and externalize some of their costs will gain competitive advantages. So collective action is required. But more important here is the solution to the problem of injustice: if threats are eliminated, then there is no disproportionate risk.

Part of what is most valuable here is an endorsement of the idea of true costs – prices should include the real or true costs of production, including the environmental and health consequences and impacts, rather than allowing sellers and purchasers to externalize those costs to others. In a system committed to markets as a way of allocating scarce resources, determining value, and making choices from competing needs and wants, it is critical that prices provide accurate information about the true costs of what is being sold. As real costs are better understood, those affected by them can have more of the information needed to make tradeoffs and balance competing concerns such as environmental protection and economic development (Prugh et al. 2000:28–9).

The idea of sustainability goes beyond reforming environmental and natural resource laws to make them more effective, to addressing the values underlying production and consumption. Sustainability is admittedly a broad and vague term, expansive enough to be able to aggregate a wide range of interests under its umbrella, but specific enough to give some direction. Sustainability focuses on comprehensive solutions that reflect the interconnections of ecology. It respects the maxim “everything is connected to everything else,” which is at the heart of ecology (Commoner 1990). It requires that we deal with a broad range of problems that people are concerned about – urban sprawl, traffic, air pollution, open spaces, access to recreation, overcrowding, and other ills that threaten our quality of life. Sustainability is largely a concept of community. Sustainability is bound up with notions of strong democracy, participation, and community, and those social characteristics are fostered through a scale of personal interaction. So too is it a commitment to a land ethic. Aldo Leopold defined a land ethic, sounding much like a proponent of sustainable communities: “An ethic, ecologically, is a limitation on freedom of action in the struggle for existence […] All ethics so far evolved rest upon a single premise: that the individual is a member of a community of interdependent parts […] The land ethic simply enlarges the boundaries of the community to include soils, water, plants, and animals, or collectively: the land” (1966:238–9).

Sustainability seems promising as an idea for governing a community. The problem is how to extend the idea beyond our community. We may find that our own community is sustainable if we export our wastes or import unsustainable levels of resources. We may find that our own community thrives, while others live lives mired in poverty. How does sustainability guide us in these circumstances?

The distribution of wealth and material resources is a concern of sustainability, both in terms of intergenerational equity, including the wealth and wealth-generating opportunities preserved for future generations, and the distribution within the current generation. Wealth matters because the lack of it causes people to engage in ecologically damaging practices to survive. But sustainability requires also a sense of limits and appropriate scale, and the distribution of resources. The same forces that exploit natural resources also exploit people, and sustainability calls for solidarity and social concern among all human beings. Sustainability also requires that the pressures of human populations and consumption growth be moderated. It is not enough to stabilize population growth because the ecological impact of population is a function of the kinds of technologies that are prevalent and levels of consumption. One of the fundamental tasks of sustainability is to increase the consumption of the poor and their access to goods and services, while at the same time decreasing the level of pollution produced and the nonrenewable resources used. This requires improvements in efficiency and shifts to cleaner fuels and processes, and may also require reduced consumption by the rich in a resource-constrained world and recognition of limits to the ability of ecosystems to absorb pollution.

Environmental Justice Frameworks

The five frameworks are not independent ways of approaching the problem of injustices; they overlap in many ways. Advocates of environmental justice will find that elements of each can contribute to their goal. Some remedies may come from within one framework, while others will be built in the interaction of different approaches. No one framework is sufficient, but in recognizing where those with other views are coming from, we can develop opportunities for creative solutions that bring together alternative approaches. The traditional, civil rights approach, for example, is compelling, and has a strong history on which it can extend its efforts. Advocates of this approach can find allies who come at the problem from other directions. Expectations of distributive justice pull powerfully on many people as a way to remedy past injustices and prevent future ones. Enhanced public participation by all members of a community is widely viewed as an essential part of any response to injustice, and is valuable in promoting democratic politics. Social justice addresses the essential needs of all members of a community to live lives of freedom, dignity, and promise. Advocates of solutions to problems such as access to adequate water supplies and exposure to toxic mine tailings can seek legal remedies rooted in civil rights or pursue more fundamental social and economic reforms that promise to give people more power over their lives.

The agenda laid out by the idea of ecological sustainability is particularly important for addressing natural resource injustices. Sustainability is intertwined with political and governmental renewal that encourages participation of citizens and engages them in identifying problems, designing solutions, and implementing them. A strong sense of political efficacy encourages people to become involved in devising solutions to environmental problems. A robust commitment to community motivates people to reduce adverse impacts they impose on others and contribute to a shared quality of life. The kinds of changes that are required by sustainability require motivation and commitment that are more likely to come from people who feel a sense of responsibility and accountability for how their actions affect others’ quality of life. The changes also require engagement and empowerment, so that participants devise solutions they are then willing to comply with. A spirited, vibrant civil society, composed of effective government and committed nongovernmental organizations, works together to ensure the common interests of all are realized.

Environmental Justice and Climate Change

The idea of environmental justice helps clarify the ethical issues underlying climate change and compels action to reduce the threat even in the face of uncertainties and to help poor nations with the costs of adapting to disruptive climate change. Those who are largely not responsible for the emissions, and who have largely not enjoyed the benefits of burning fossil fuels, are the ones who will bear the brunt of the impacts, and have few resources to adapt to disruptive changes. The converse is, of course, true: those who are most responsible for emissions and who have captured and enjoyed great wealth arising from fossil fuel use, enjoy the resources to adapt to many of the consequences of climate change.

Reports from the United Nations Intergovernmental Panel on Climate Change (IPCC) and many other scientific bodies conclude that the earth and its inhabitants are already experiencing the effects of climate change. The November 2007 synthesis report of the IPCC pointed to a number of signs that global warming is occurring, including a decline in both hemispheres of mountain glaciers and snow cover, and an increase in precipitation in the eastern parts of North and South America, northern Europe, and northern and central Asia, and a decline in the Sahel, Mediterranean, southern Africa, and parts of southern Asia. “Observational evidence from all continents and most oceans,” the authors of the report wrote, “shows that many natural systems are being affected by regional climate changes, particularly temperature increases” (IPCC 2007:1).

Adaptive capacity is intimately connected to social and economic development but is unevenly distributed across and within societies. Areas of the world already susceptible to the effects of adverse weather and environmental problems and lacking in resources to deal with these challenges will likely find such problems greatly magnified in the future. Adapting to the disruption of water supplies will likely require water policies and integrated water resource management efforts such as increased harvesting of rainwater, water storage, conservation, water reuse, desalination, and efficiency investments. Agricultural adaptations might include adjusting planting dates and crop variety, relocating crops to more hospitable areas, and more tree planting and other measures to reduce soil erosion. More fundamental policy changes could focus on research and development efforts aimed at producing drought-resistant crops and new strains that flourish in new climates, expanding crop insurance programs to help farmers cope with climate-driven crop failures, and land tenure and land reform to create new opportunities for marginalized farmers. But many developing countries lack the resources to pursue such policies.

In their comprehensive study of the impacts of climate-related disasters (not necessarily driven by climate change), Roberts and Parks (2007:74–9) found that the poor nations of Asia, Africa, and Central America repeatedly suffer the greatest casualties from climate-related catastrophes such as flooding, droughts, severe windstorms, and heat waves. The only climate-related disasters producing relatively high levels of casualties in developed countries are heat waves, such as those in Chicago in 1995 and Europe in 2003. Between 1980 and 2002, climate-related disasters claimed nearly 301,000 lives in Ethiopia, a fatality rate of 4.78 per thousand. During that same time, they rendered homeless some 62 million Bangladeshis, almost 46 percent of the total population. The 20 countries that suffered the largest number of fatalities from these kinds of disasters were all developing countries, except the US, which ranked tenth in terms of the number of people killed (7,617) during this time. While these climate-related storms were not necessarily driven by global warming, they demonstrate the magnitude of the impacts and their tremendous effects on poor countries.

Specific examples of communities threatened by climate suggest how expensive adaptation will be. In Alaska, global warming has been blamed for warming the atmosphere and melting the sea ice in ways that threaten to cause houses and buildings to fall into the sea from storms and the crumbling of the ground on which they are built. One village, Kivalina, located north of the Arctic Circle, is located on a barrier reef in the Chukchi Sea and is home to the Inupiat. The cost of relocating the village is estimated to be about $400 million, or about $1 million for each of the village’s 400 residents (Barringer 2008; Cole 2008). The actual costs of rebuilding or moving a community are relatively straightforward; much more daunting is to determine how to address the loss of lives or the threat to indigenous communities whose culture, identity, and existence are intertwined with their traditional lands.

The Obligation to Pay for Adapting to Climate Change

Climate change implicates powerful ethical concerns that help shape thinking about how to finance the cost of adaptation. The stark differences in the world between the life chances and quality of life of the wealthy and poor and the tremendous human suffering associated with extreme poverty make equality a global public policy priority. Economic growth has become a priority for globalization as well as serving as a fundamental political goal in America. Providing for an equal distribution of resources, or at least some level of redistribution from the wealthy to the poor reflects a recognition of the profound and equal worth of each person. A redistribution of resources toward the poor pursues the value of ensuring everyone has at least some of the resources necessary for people to become authors of their own lives and to make and pursue basic life choices. Equality is intertwined with democracy and empowerment of individuals to participate in political, as well as economic and social life. However, given the growing evidence of global environmental threats, it is not responsible to discuss options for promoting economic growth without framing those options in terms of ecological sustainability. Equity is a central challenge of climate change policy making because of inter- and intragenerational concerns and the mismatch between those who enjoy the benefits of activities producing greenhouse gases (GHGs) (the industrialized world) and those who lack the resources (current developing world and future generations) to adapt to the consequences.

Both procedural and distributive justice provide standards and guidance for designing and evaluating policies. The distribution of climate change impacts is quite unequal and will become even more pronounced in the future. The vulnerability to climate change impacts is similarly distributed unfairly around the world: those in the South are much more vulnerable than those in the wealthy world. Adaptation strategies also raise issues of justice and fairness because of the ways in which they will increase or decrease vulnerabilities (Adger et al. 2006:4). The issues involved in adaptation include determining responsibility for climate change impacts, the level and burden sharing of assistance to developing countries for adaptation, the distribution of assistance between countries and adaptation measures, and how to promote equal participation in planning and decisions on adaptation (Adger et al. 2006:276–7).

Roberts and Parks emphasize how inequality makes cooperation more difficult as it generates divergent views and expectations, contributes to mistrust, and makes it difficult to fashion agreements about what constitutes fairness and justice in international agreements and efforts. Climate change takes place within the context of international development and the decades of efforts in developing countries to draw attention to their environmental problems of a lack of safe drinking water, indoor and urban air pollution, soil erosion, and desertification and the intersection of these problems with poverty, poor health, malnutrition, and a host of other challenges they face. The issues of the wealthy world, such as climate change, ozone depletion, and loss of biodiversity, are much less pressing concerns for them. But the wealthy world agenda dominates, and global agreements push the South to take on the environmental issues that are of lowest priority and importance to them, much less immediate than the pressing needs of survival and basic quality of life. A core challenge in climate change politics is defining who is responsible for the problem, who will likely suffer the effects, and who will bear the largest costs of adaptation (Roberts and Park 2007:6–7).

There has been relatively little political discussion of how to pay for the costs of adaptation to climate change. The United Nations Framework Convention on Climate Change (1992) spawned several multilateral funds to help developing countries adapt to climate change. The Least Developed Country Fund was created in 2001; as of mid-2007, it had spent $9.8 million on small-scale projects. The Special Climate Change Fund, which began operating in 2005, has disbursed $1.4 million in two years on the long-term adaptation of developing countries to climate change. The Strategic Priority on Adaptation, started in 2004, spent $14.8 million on ecosystem management projects. The Adaptation Fund is funded through a 2 percent levy on credits generated through the Clean Development Mechanism (that allows developed countries to offset their emissions by funding projects in developing countries that reduce GHG emissions), but no funds have yet been disbursed because of disagreements over governance issues. In sum, these funds have provided $26 million in adaptation funding through mid-2007, an amount over six years equal to what the United Kingdom spends each week on flood control (UNDP 2007:188–9).

The modest beginning of these special multilateral funds is not surprising, given the history of development assistance. Few countries have actually followed through with their promise to dedicate 0.7 percent of their GDP to developing countries. Assistance declined dramatically in the 1990s, rebounded in the early years of the twenty-first century in response to several global meetings, then fell by 5 percent in 2006 (UNDP 2007:185–7). Current and recent spending on development assistance in general, as well as on these climate adaptation funds, fails to address even a fraction of the adaptation needs that have been identified. As impacts become more visible and global accords are strengthened, these funds may be dramatically expanded. But little assistance is now available from these sources. All this suggests the importance of the two levels of problems – the tension between levels of consumption in the industrialized and developing nations, and differences of wealth within nations. However, the rapid growth in the emerging economies in Asia and elsewhere suggest the limited value of the traditional industrialized–developing nation distinction.

Conclusion

Helping the victims of disruptive climate change adapt to those changes and deal with the damages that occur will require massive transfers of resources to victims, particularly those in developing countries. Carbon taxes and revenues from auctioning allowances for cap-and-trade programs are two promising ways to raise funds for adaptation, but those funds may also be earmarked for subsidizing and encouraging energy efficiency, renewable energy, and other mitigation efforts. There are, however, problems with relying on revenues from a carbon tax for paying for adaptation. For the tax to be successful, it must be high enough that it actually compels sources to reduce their emissions. If sources simply continue to release GHGs and pay the tax, the problem will not be solved.

Climate change cases such as those that have been brought in the US are no substitute for major global programs aimed at funding the kinds of adaptive measures that are already needed at a large scale. But they are helping to clarify the responsibility of major GHG emitters and those who enjoy the goods and services produced by those emissions to include in the prices they pay the cost of the consequences of those emissions. Since the common law is alive and well in other nations, the argument here does not apply just to the US, but to courts elsewhere. A comparative study could help illuminate whether these kinds of cases are being brought elsewhere and what the prospects are for encouraging them in other nations. Another fruitful area of study is to examine how international courts of justice could also provide a forum for discussing and evaluating ways of framing the obligation of GHG emitters and those who benefit from those emissions to help pay for the cost of adapting to a warmer and, in many places, a much less hospitable world.

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