Defining the Problem

AuthorBarry E. Hill
Page 15
Chapter 1
Defining the Problem
is chapter poses a quest ion: Are minority and/or low-income communities exposed disproportionately
to environmental risks, thereby suering a disproportionate share of environmental harms? e answer to
this central question ca n be found in an increasing body of disturbing e vidence.
is chapter represents Prof. J.B. Ruhl’s rst degree of relevance, which provides that: “e idea becomes
widely expressed t hrough a generally-accepted norm statement.” Professor Ruhl stated further that “early
in its emergence the environmental justice movement took civil rights, pollution regulation, contaminated
lands remediation, and environmental enforcement and melded them into one very simple and very pow-
erful idea—that the benets of environmental protection must be equitably distributed over racial and
income lines.” us, the notion that “the benets of environmental protection must be equitably distrib-
uted over racial and income lines” is to be considered the new norm statement.
1.1 Overview: Who Bears the Burden?
e ba sic premise of the environmental justice movement is that the burden of adverse environmental
impacts and exposure to environmental risks falls disproportionately on minority and/or low-income com-
munities. As Profs. Paul Mohai and Bunyan Bryant have written: “A prevailing assumption in this country
has been that pollution is a problem faced equally by everyone in society. However, that assumption has
become increasingly challenged as greater attention has been given by the media, socia l scientists, legal
scholars, and policymakers to the issue of environmental injustice.”4
is assumption—that Americans share environmental risks and harms equally—has been examined
extensively, and a substantial number of independent researchers have concluded that the most important
predictor of whether a particula r community has a ha zardous waste land ll is its racial composition—the
more people of color, the higher the probability. Prof. Robert Bullard has written that “[w]hether by con-
scious design or institutional neglect, communities of color in urban ghettos, in rural ‘poverty pockets,’
or on economically impoverished Native-America n reservations face some of the worst environmental
devastation in the nation.”5
ree related but distinct terms—environmental racism, environmental equity, and environmental jus-
tice—have been used to describe the phenomenon of how environmental risks and harms a ect cer tain
communities more than others.
• e term environmental racism was brought to national attention by Reverend Benjamin F. Chavis,
who at the time was executive director of the Commission for Racial Justice of the United Church of
Christ (UCC). He dened it as “racial discrimination in environmental policymaking, in the enforce-
ment of regulations and laws, and the targeting of communities of color for toxic waste disposal and
siting of polluting industries.”6 Professor Bul lard has written: “Environmental racism refers to any
policy, practice, or directive that dierentially aects or disadvantages (whether intended or unin-
tended) individuals, groups, or communities based on race or color. Environmental racism combines
with public policies and industr y practices to provide benets for whites while shifting industry costs
to people of color.”7 Environmental injustice is an extension of environmental racism. Institutional-
ized environmental racism can be viewed as political practices, cultural norms, and power structures
that knowingly, or even unintentionally, disproportionately aect people of color communities.
4. Paul Mohai & Bunyan Bryant, Environmental Injustice: Weighing Race and Class Factors in the Distribution of Environmental Hazards, 63 U.
C. L. R. 921, 921 (1992).
5. Robert D. Bullard, Anatomy of Environmental Racism and the Environmental Justice Movement, in C E R:
V F  G 17 (Robert D. Bullard ed., South End Press 1993) [hereinafter C E R].
6. Robert D. Bullard, Grassroots Flowering, 16 A J. 32, 32 (1994).
7. R D. B, D  D: R, C,  E Q 98 (1994).
Page 16 Environmental Justice: Legal Theory and Practice, 4th Edition
• Conversely, environmental equity is t he notion that all populations should bear a proportionate
share of environmental pollution and health risks.8 e premise is that environmental benets and
burdens, a nd environmental protection and environmental hazards, should be equally distributed
throughout society. Equity and equality a re closely related. Equity refers to freedom from favoritism
when referring to a system of environmental laws and reg ulations, and the ful llment of standards
regarding environmental health. For example, the U.S. Environmental Protection Agency (EPA) has
established standards of acceptable air quality limits under the Clean Air Act. Consequently, the air
quality for all communities should not exceed those standards. Equality, however, refers to the same
treatment of all communities with respect to environmental health. us, all communities, regardless
of race or income, should host the same amount of pollution-generating industries, and, therefore,
their air quality should be equa l.
• Environmental justice encompasses both of the preceding concepts. It has been dened as “[t]he
achievement of equal protection from environmental and hea lth haza rds for all people regardless of
race, income, culture or social class.”9 According to Prof. Bunyan Bryant, environmental justice refers
to those cultural norms and values; rules; regu lations; behaviors; policies; and decisions to support
sustainable communities where people can interact with condence that the environment is safe,
nurturing, and productive. Environmental justice is ser ved when people can realize their highest
potential, where both cultural and biological diversity are respected and high ly revered and where
distributed justice prevails.10
e goal of environmental justice advocates is to reduce pollution as a whole, not to simply relo-
cate it elsewhere. Since environmental justice is based on the premise that it is a basic right of all
Americans to live and work in a clean and healthy environment, it denes the goal to be achieved.
It also is a less restrictive term than environmental racism, since it includes the concepts of eco -
nomic (income and class) prejudices as well as racial prejudices. e term environmental justice
has therefore become the preferred name for the movement that analyzes and tries to counteract
this phenomenon.
EPA, which has embraced the term environmental justice as a goal to be achieved for all com-
munities, uses an indicator-based approach to screen geographic areas for disproportionate and
adverse environmental risks and to understand the social, economic, health, and environmental
characteristics of a selected area. Figure 1.1 illustrates how EPA uses a robust set of environmental
justice indicators to gain a comprehensive snapshot of a community. e indicators are: (1)envi-
ronmental; (2)health; (3)social; and (4)economic.11 Indicators are data that highlight some aspect
8. E J G, E J: A M  P vii (National Conference of State Legislatures 1995).
According to EPA: “[Environmental equity” means “[e]qual protection from environmental hazards for individuals, groups, or communities
regardless of race, ethnicity, or economic status.” U.S. E P A (EPA), G  E I—
E D 25 E 53 (1995) (EPA 520/B-94-001).
9. Id. According to EPA:
Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or
income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
Fair treatment means that no group of people, including racial, ethnic, or socioeconomic groups, should bear a disproportionate
share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution
of federal, state, local, and tribal environmental programs and policies.
Meaningful involvement means that: (1)potentially aected community residents have an appropriate opportunity to participate
in decisions about a proposed activity that will aect their environment and/or health; (2)the public’s contribution can inuence
the regulatory agency’s decision; (3)the concerns of all participants involved will be considered in the decision-making process; and
(4)the decisionmakers seek out and facilitate the involvement of those potentially aected.
U.S. EPA, T  A P A  E I (2004) (EPA 300-R-04-002) (emphasis added),
available at
10. B B, ., E J: I, P,  S (Island Press 1995).
11. According to EPA:
Examples of environmental indicators include:
• Number of environmentally regulated facilities within a community
• Length of time regulated facilities have operated within a community
• Number of current and past permit exceedances by regulated facilities
• Number or extent of nonpoint sources of pollution.
Examples of health indicators include:
Def‌ining the Problem Page 17
of current conditions and trends in a particular geographic area. Indicators provide information
that can be used in an environmental justice assessment by Agency sta to supplement, as appro-
priate, information that is more specic to the environmental decision that is being evaluated, e.g.,
impacts from a facility being sited or permitted, or potential impacts of a proposed rule.
Figure 1.1
is chapter explores the “facts” in an eort to determine whether the concerns underpinning
the environmental justice movement are “real,” and not merely convenient inventions of fanatical
community-based activists and their legal counsel, or a small group of sociologists, legal theorists,
and political scientists. A rguably, there are two k inds of “facts”—those based on sound research,
and those that are simply made up. e exploration of these “facts” in the following pages will,
hopefully, shed some light on whether, in fact, minority and/or low-income communities are dis-
proportionately exposed to environmental harms and risks.
Over the last three decades, there have been more than 100 studies by independent researchers attempt-
ing to “prove” or “disprove” the existence of environmental and public health inequities based on race and/
or income. Most of the academic environmental justice research investigated the disproportionate negative
impacts of siting on the quantity, quality, and the extent of the environmental and public health problems
in minority and/or low-income communities. e studies that follow in this chapter strongly sug gest that
hazardous waste sites, incinerators, and other pollution-generating facilities are disproportionately located
in or near minority and/or poor communities, whether urban or rural. A lthough some may consider the
studies to be controversial, or may question their methodologies and approaches, there is little doubt that
• Infant mortality rate dened as the number of deaths under the age of 1 per 1,000 live births
• Low birth rate dened as the number of births
• Life expectancy at birth
• Age adjusted mortality rate dened as the number of deaths from all causes, except homicides/suicides, per 100,000 people.
Examples of social indicators include:
• Percent of population that is of various ethnic and national origins or other factors such as age
• Percent of population that is literate
• Percent of community with access to health care facilities.
Examples of economic indicators include:
• Unemployment rate
• Income levels and distribution
• Percent of homeowners in a community or the percent of renters in a community
• Number of brownelds in the community.

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