Defining the problem

• Author: Barry E. Hill
• Pages: 13-66

Chapter 1

DEFINING THE PROBLEM

This chapter poses a question: Are minority and/or low-income communities exposed dispropor-

tionately to environmental risks, thereby suffering a disproportionate share of environmental harms?

The answer to this central question can be found in an increasing body of disturbing evidence.

1.1 Overview: Who Bears the Burden?

The basic premise of the environmental justice movement is that the burden of adverse environ-

mental impacts and exposure to environmental risks falls disproportionately on minority and/or

low-income communities. 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 soci-

ety. However, that assumption has become increasingly challenged as greater attention has been

given by the media, social scientists, legal scholars, and policy makers to the issue of environmen-

tal injustice.”3

This assumption—that Americans share environmental risks and harms equally—has been exam-

ined extensively, and a substantial number of researchers have concluded that the most important

predictor of whether a particular community has a hazardous waste landfill is its racial composi-

tion—the more people of color, the higher the probability. Prof. Robert Bullard has written that

“[w]hether by conscious design or institutional neglect, communities of color in urban ghettos, in ru-

ral ‘poverty pockets,’ or on economically impoverished Native-American reservations face some of

the worst environmental devastation in the nation.”4

Three related but distinct terms—environmental racism,environmentalequity, and environmental

justice—have been used to describe the phenomenon of how environmental risks and harms affect

certain communities more than others.

·The term environmental racism was brought to national attention by Benjamin F. Chavis,

who at the time was executive director of the Commission for Racial Justice of the United

Church of Christ (UCC). He defined it as “racial discrimination in environmental

policymaking, in the enforcement of regulations and laws, and the targeting of communities

of color for toxic waste disposal and siting of polluting industries.”5Professor Bullard has

written: “Environmental racism refers to any policy,practice, or directive that differentially

affects or disadvantages (whether intended or unintended) individuals, groups, or communi-

ties based on race or color.Environmental racism combines with public policies and industry

practices to provide benefits for whites while shifting industry costs to people of color.”6

·Conversely, environmental equity is the notion that all populations should bear a propor-

13

3. Paul Mohai & Bunyan Bryant, Environmental Injustice: Weighing Race and Class Factors in the Distribution of

Environmental Hazards,63U. Colo. L. Rev. 921, 921 (1992).

4. Robert D. Bullard, Anatomy of Environmental Racism and the Environmental Justice Movement,in Confronting

Environmental Racism: Voices From the Grassroots 17 (Robert D. Bullard ed., South End Press 1993)

[hereinafter Confronting Environmental Racism].

5. Robert D. Bullard, Grassroots Flowering,16Amicus J. 32, 32 (1994).

6. Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality 98 (1994).

tionate share of environmental pollution and health risks.7The premise is that environmental

benefits and burdens should be equally distributed throughout society.

·Environmental justice encompasses both of the preceding concepts. It has been defined as

“[t]he achievement of equal protection from environmental and health hazards for all people

regardless of race, income, culture or social class.”8

The 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 healthy environment, it defines the goal to be achieved. It also is less

restrictive a term than environmental racism, since it includes the concepts of economic (income and

class) prejudices as well as racial prejudices. The term environmental justice has therefore become

the preferred name for the movement that analyzes and tries to counteract this phenomenon.

The U.S. Environmental Protection Agency (EPA), which has embraced the term environmental

justice as a goal to be achieved for all communities, uses an indicator-based approach to screen geo-

graphic areas for disproportionate and adverse environmental risks and to understand the social, eco-

nomic, 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 commu-

nity. The indicators are: (1) environmental; (2) health; (3) social; and (4) economic. Indicators are

data that highlight some aspect of current conditions and trends in a particular geographic area. Indi-

cators provide information that can be used in an environmental justice assessment by Agency staff

to supplement, as appropriate, information that is more specific 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.

14 ENVIRONMENTALJUSTICE: LEGAL THEORY AND PRACTICE

7. Environmental Justice Group, Environmental Justice: A Matter of Perspective vii (National Conference

of State Legislatures 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.

Environmental Protection Agency (EPA), Guide to Environmental Issues—Earth Day 25th Edition

53 (1995) (EPA 520/B-94-001).

8. 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 affected community residents have an appropriate

opportunity to participate in decisions about a proposed activity that will affect their environment and/or

health; (2) the public’s contribution can influence 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 affected.

U.S. EPA, Toolkit for Assessing Potential Allegations of Environmental Injustice (2004) (EPA

300-R-04-002) (emphasis added), available at http://www.epa.gov/compliance/resources/policies/ej/ej-toolkit.pdf.

Figure 1.1

This chapter explores the “facts” in an effort to determine whether the concerns underpinning the

environmental justice movement are “real,” and not merely convenient inventions of fanatical com-

munity-based activists and 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. The exploration of these “facts” in the following pages will, hopefully,

shed some light on whether, in fact, minority and/or low-income communities are disproportionately

exposed to environmental harms and risks.

The studies that follow in this chapter strongly suggest 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. Although some may consider the studies to be controversial, or

may question their methodologies and approaches, there is little doubt that poor people and minori-

ties are far more likely than their wealthier counterparts to live in communities 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

The first protest on record against environmental injustice occurred in 1967, although it was not

identified as such at the time.9Student groups at TexasSouthern University in Houston demonstrated

against the discriminatory treatment of African American citizens,10 prompted in part by the drown-

ing of an eight-year-old girl in a city-owned garbage dump.11 The dump was located in a predomi-

DEFINING THE PROBLEM 15

9. Bullard, supra note 5, at 32.

10. Id.; Adam D. Schwartz, The Law of Environmental Justice: A Research Pathfinder, 25 ELR 10543, 10543 (Oct. 1995).

11. Bullard, supra note 5, at 32.