Defining the Problem

AuthorBarry E. Hill
Pages13-98
Page 13
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.
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 risk s 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 t he United Church
of Christ (UCC). He dened it as “racial discrimination in environmental policymaking, in the
enforcement of regulations and laws, and the targeting of communities of color for toxic waste dis-
posal and siting of polluting industries.”6 Professor Bullard has written: “Environmental racism refers
to any policy, practice, or directive that dierentially a ects or disadvantages (whether intended or
unintended) individuals, groups, or communities based on race or color. Environmental racism com-
bines with public policies and industry practices to provide benets for whites while shifting industry
costs to people of color.7
• Conversely, environmental equity is the 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
should be equally distributed throughout society.
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).
8.
E J G, E J: A M  P vii (National Conference
of State Legis-
latures 1995). According to EPA: “[E]nvironmental 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).
Page 14 Environmental Justice: Legal Theory and Practice, 3rd Edition
• 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 cla ss.”9
e goal of environmental justice advocates is to reduce pollution as a whole, not to simply relocate 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 economic (income and cla ss) 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 communities,
uses an indicator-based approach to screen geographic areas for disproportionate and adverse environmen-
tal risks a nd to understand t he 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 com-
prehensive snapshot of a community. e indicators are: (1) environmental; (2) health; (3) social; and (4)
economic.10 Indicators are data that highlight some aspect of current conditions and trends in a pa rticular
geographic area. Indicators provide information that can be used in an environmental justice assessment
by Agency sta to supplement, as appropriate, information that is more specic to the environmental deci-
sion that is being evaluated, e.g., impact s from a facility being sited or permitted, or potential impacts of
a proposed rule.
9. Id. According to EPA:
Environmental justice is the fair treatment and meaning ful 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 execu-
tion 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 par-
ticipate 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 http://www.epa.gov/compliance/resources/policies/ej/ej-toolkit.pdf.
10. 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:
• 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
Id.
Def‌ining the Problem Page 15
Figure 1.1
is chapter explores the “facts” in an eort to determine whether the concerns underpinn ing the
environmental justice movement are “real,” and not merely convenient inventions of fa natical commu-
nity-based act ivists a nd their legal counsel, or a small group of sociologists, legal theorists, and political
scientists. Arguably, there are two kinds of “facts”—those based on sound research, and those that are
simply made up. e exploration of these “facts” in the following pages will, hopeful ly, shed some light on
whether, in fact, minority and/or low-income communities are disproportionately exposed to environmen-
tal 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
poor people and/or minorities are far more likely than their white, wealthier counterparts to live in com-
munities near industrial sites and consequently have a higher exposure to a variety of pollutants.
1.2 Social, Health, Environmental, and Economic “Facts”
1.2.1 Siting Decisions
e rst protest on record against environmental injustice occurred in 1967, although it was not identied
as such at the time.11 Student groups at Texas Southern University in Houston demonstrated against the
discriminatory treatment of African American citizens,12 prompted in part by the drowning of an eight-
year-old girl in a city-owned garbage dump.13 e dump was located in a predominantly African American
neighborhood called Sunnyside, adjacent to a playground and school.14
ere were several days of demon-
11. Bullard, supra note 6 , at 32.
12. Id.; Adam D. Schwartz, e Law of Environmental Justice: A Research Pathnder, 25 ELR 10543, 10543 (Oct. 1995).
13. Bullard, supra note 6 , at 32.
14. Id.

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