Mervyn L. Tano
Tano & Associates
Denver,
Colorado
ABSTRACT
During the past twenty years, the development of environmental protection policy in the United States has generally followed a utilitarian path, i.e., providing the greatest good (clean air and clean water) to the greatest number of people. The implementation of that policy had been almost exclusively concerned with two basic issues: first, determining what is an acceptable level of pollution; and second, identifying the types of rules that would be best suited for reducing pollution to that level. Federal environmental regulators used tools such as risk assessments and epidemiological studies to establish maximum contaminant levels for drinking water, permitting systems for discharging effluents into waterways, and air quality standards for ozone, PM-10 and other air emissions and other pollution control facilities. Design and construction standards were established for municipal solid waste and hazardous waste landfills. In general, the results of twenty years of environmental regulation have produced a lot of good for a lot of people. Today people can swim and fish in many stretches of the Potomac River that were declared off-limits twenty years ago. The Cuyahoga River is no longer a fire hazard. Lake Erie is no longer a stagnant and dying body of water. Industrial releases of toxic chemicals have declined in the past several years. Companies compete for green awards and use environmental compliance to enhance their corporate image.
There were and are, of course, improvements that had to be made--more species to be listed as endangered, more lands to be designated as wilderness and stricter air and water standards to be promulgated. All of these improvements and others were intended to extend the periphery of an environmental protection policy that was assumed to be fundamentally sound and fundamentally just. That benign view of environmental protection policy was challenged by studies of solid waste facilities in Houston conducted by Dr. Robert D. Bullard of Texas Southern University in 1979 and a series of events that began in the early 1980s. Professor Bullard found that nearly all of the solid waste facilities in Houston were located in predominantly black neighborhoods. In 1983, the General Accounting Office surveyed locations of hazardous waste landfills in the southeastern United States. The GAO found that blacks make up the majority of the population in three of the four communities where the landfills are located. The GAO also found that at least 26 percent of the population in all four communities have incomes below the poverty level and that most of this population is black. In 1987 the Commission for Racial Justice of the United Church of Christ released "Toxic Waste and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites." That report was the first national study to establish a clear link between race and the siting of toxic waste facilities. It found that people and communities of color face a disproportionate risk of exposure to toxic materials and hazardous waste sites. The findings include:
1. Race proved to be the most significant factor among variables tested in association with the location of commercial hazardous waste facilities;
2. Communities with the greatest number of commercial hazardous waste facilities had the highest composition of residents of racial and ethnic minorities; and
3. Three of the five largest commercial hazardous landfills in the United States are located in predominately Black or Hispanic communities.
The most prominent response to the GAO and UCC studies was a conference held at the University of Michigan in January 1990 in which grassroots activists, academics, mainstream environmentalists and government officials from across the country presented and discussed papers concerning environmental justice issues from a variety of perspectives.
INITIAL STIRRINGS
There is no doubt that in just a few short years the environmental justice movement has successfully forced policy makers to pay attention to the distributional effects, including the potential for distributional inequities, of environmental protection generally. The environmental justice movement has forced policymakers to identify how the burdens as well as the benefits of a utilitarian approach to environmental protection are spread among groups of persons. That federal agencies are now accounting of how pollution controls redistribute environmental risks among groups of persons is due in large part to the efforts of the environmental justice movement.
For example, in 1990 the Michigan Conference participants met with EPA Administrator William K. Reilly who, at their urging, created an "Environment and Equity" workgroup at the agency. In July 1990, Reilly established the Environmental Equity Workgroup. The Workgroup was charged with reviewing the evidence that people of color, "bear a disproportionate environmental risk burden." By May of 1992, the Workgroup submitted its findings to Reilly in the form of a two volume report, Environmental Equity: Reducing Risks for All Communities, that presented, among others, the following findings:
On February 11, 1994 President Clinton signed Executive Order 12898 which made federal agencies responsible for achieving environmental justice by identifying and addressing disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations.
Not only federal environmental protection policies and practices are being scrutinized for distributive inequities, but those of mainstream environmental organizations are as well. One of the ironies of the predominantly white mainstream environmental movement is that so much of its structural roots and moral inspiration are found in the civil rights movement that preceded it. The environmental movement's prominence in the aftermath of the civil rights movements' successes in the 1960s was not mere happenstance. Environmental groups not only adopted organization structures, civil disobedience approaches, and litigation strategies based on those utilized by civil rights organizations, but also used the rhetorical power of the civil rights movement on behalf of environmental protection. Environmental rights were analogized to civil rights, and parallels were drawn between the emancipation of African-Americans and the emancipation of wildlife, plant life, and nature in general. Yet African Americans and other minorities are prominent by their absence on the staffs of national environmental organizations. John H. Adams, Executive Director of the Natural Resources Defense Council has suggested that national environmental groups need to broaden and deepen their alliances with the environmental justice movement, diversify their staffs and engage environmental justice activists as partners. NRDC, the Environmental Defense Fund and Greenpeace have begun engaging environmental justice organizations in partnerships and are working to diversify their staffs.
However, the issue that national environmental organizations will have to confront in their efforts to partner with environmental justice groups and to diversify their staffs is how to do so in a way that avoids the natural assimilationist tendencies of mainline organizations.
WORK IN PROGRESS
Most of the successful work undertaken by environmental justice activists has occurred at the grassroots in addressing "end-of-the-pipe" issues. For example, the Mothers of East Los Angeles and Concerned Citizens helped cancel plans to build California's first large-scale toxic waste incinerator in a low-income, primarily Hispanic community. The Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation and the Yakama Indian Nation are overseeing theDepartment of Energy's environmental management activities at Hanford to protect their treaty rights.
The more difficult agenda for the environmental justice movement is to address the systemic causes of distributive inequities. The problem is that the present philosophical foundations of our environmental laws and federal facility environmental restoration programs do not provide Pareto Optimality in the classic sense of making everyone better off and no one worse off and that, thus far, the environmental justice movement has not articulated an alternative philosophy that will support a more just environmental policy that will not only address the distributional effects of environmental laws but will also promote the economic and social development of minority communities.
Building the Analytical and Technical Capability
Environmental protection laws and policy are based in some measure on science and economics. The scientific issues related to the distributive aspects of environmental protection policy are extremely complex and require an analytical and technical capability not found in most environmental justice organizations. For example, California and the Northeastern states have passed laws requiring that 2% of model 1998 cars must be "zero emissions" vehicles, i.e., electric vehicles. EV technology is advantageous because it produces no air pollution at the point of use, however, the technology also redistributes the environmental risks from the large urban centers in Southern California and the Northeast to the host sites of large centralized electric generation plants. Similarly, widespread use of EV technology may increase lead emissions from lead mining and smelting and from lead acid battery fabrication and recycling. The environmental justice implications of issues such as EV technology, trading in emission discharge certificates and other market oriented environmental protection remain a field ripe for scientific inquiry.
Mainstream environmental organizations such as the Natural Resources Defense Council and Environmental Defense Fund have access to scientists, engineers, attorneys and economists through their staffs or through affiliations with researchers and academics at universities. These organizations embrace science and seek to demonstrate, through technical mastery, the soundness of their positions on toxic substances, air quality and radioactive waste management. At present, the environmental justice movement does not include clear analogs of the NRDC and EDF. Organizations such as the Center for Environment, Commerce and Energy; National Tribal Environmental Council; Council of Energy Resource Tribes and the Columbia River Intertribal Fisheries Commission as well as educational institutions such as the Historically Black Colleges and Universities and the twenty-eight tribal colleges are repositories of scientific and technical expertise that can and should be directed toward environmental justice issues. The environmental justice community should set out its science and technology research agenda to guide the work of these organizations and to identify other such organizations and alliances that need to be established.
Joining the Fray
Mainstream environmental organizations pursue strategies that can be best understood as attempts to gain access to governmental decision-making. Minority interests have traditionally had little voice in the various points of influence that strike the distributional balances necessary to get environmental protection laws enacted, regulations promulgated, and enforcement actions initiated. The interest groups historically active in the environmental protection of interests (conservation, recreation, hunting, wildlife protection, resource protection, human health), have been the mainstream environmental organizations as well as a variety of governmental, commercial and industrial concerns. Until very recently, if at all, the implications for racial minorities of environmental protection laws have not been a focal point of concern for any of these organizations or entities. Perhaps more importantly, these organizations and entities still tend to view all minorities as having the same interest and concerns and have not yet discerned the disparate impacts of these laws on different racial and ethnic minorities and communities.
Environmental legislation and policies have ultimately been produced through intense and lengthy horse-trading among interest groups, a process necessary to secure a particular environmental law's passage. This process has often depended upon the forging of alliances between diverse interests both within the environmental public interest community and within government bureaucracy. Often, these unions have included so-called "unholy alliances" between environmentalists and commercial and industrial interests, where the latter have perceived an economic advantage to be gained by their supporting an environmental protection law or program that allocates the benefits and burdens of environmental protection in a particular fashion. For example, the Environmental Defense Fund strategy includes negotiations with the perpetrators of environmental harms such as utilities to achieve workable solutions.
The environmental justice movement, if it is to become an effective player in the transformation of environmental protection policy must itself be transformed, in Weberian fashion, into rationally organized and led institutions with established routines and specialization of functions in order to cope with an economic, political and social environment in which its existence and legitimacy are no longer questioned and in which its roles and responsibilities are clearly spelled out. More specifically, the leadership of environmental justice organizations must become institutional leaders, i.e., managers, organizational developers, negotiators, as well as legal, economic and technical experts.
Articulating the Philosophical Underpinnings of Environmental Justice
Thus far, the environmental justice movement's greatest impact has been to force government and national environmental organizations to recognize and embrace human welfare as an integral part of the natural community. The environmental justice movement exposed the inequities inherent in the current, utilitarian, way of doing environmental protection business and cast environmental protection in a new light--as a vehicle for promoting human welfare and opportunity and, in particular, for redistributing environmental benefits and risks more fairly among all persons.
An even greater challenge to the environmental justice movement remains, i.e., to articulate an alternative philosophy that will support a more just environmental policy and the aims of the environmental justice movement. The first order of business is to determine exactly what the fundamental aims of the environmental justice movement are, or to answer the question, "equality of what?" Is the goal equality in the allocation of environmental burdens and risks, or is it fairness in the decision-making process? Is it the internalizing of externalities? The theories of philosophers and economists like John Rawls, Ronald Dworkin and Ronald Coase may be instructive.
THE EMERGING AND FUTURE ROLE OF ENVIRONMENTAL JUSTICE IN FEDERAL FACILITY ENVIRONMENTAL RESTORATION
In response to Executive Order 12898 federal agencies are developing and implementing environmental justice strategies. Most of the strategies purport to examine agency practices to identify inequities in the distribution of environmental burdens. The strategies also tend to include any activity or program that may include minority groups as beneficiaries as an environmental justice fix. None identify or address possible inequitable distribution of benefits. The strategies reflect the imprecision of Executive Order 12898 which fails to define environmental justice specifically and which impliedly and narrowly defines environmental justice to be the infliction of disproportionately high and adverse human health or environmental impacts of federal programs, policies and activities on minority and low-income populations. The strategies also are reflective of the tentative nature of the relationship between environmental justice organizations and federal agencies and the failure of environmental justice organizations to set out an agenda for federal action. Federal facility managers and environmental justice organizations are engaged in a cautious prenuptial dance. The facility managers wonder what the environmental justice community wants, but don't want to ask lest the answer be "everything." Leaders of environmental justice organizations movement don't know what to ask for since neither they nor the facility managers know exactly what the federal agencies bring to the relationship. Nor are many of the environmental justice organizations eager to leap into a relationship with federal facility managers lest they be viewed as losing some of their ideological virtue. Their reticence is based in part on a fear that business and government will co-opt environmental justice principles and values and reduce them to slogans and transform them into grist for public relations campaigns.
The leadership of the environmental justice movement and the managers of federal facilities ought to be rethinking their relationships with each other The activities and practices on federal facilities did indeed cause great insult to the air, land and water. These insults do indeed increase the risk of adverse health effects for the neighbors of these facilities and there is no doubt that most of the more intractable environmental restoration problems confronting the nation were caused by activities that supported the development and growth of nuclear energy, nuclear weaponry and the military. There are alternatives to the uneasy truce that currently exists between the environmental justice movement and federal agencies. Environmental justice organizations and federal agencies can agree to disagree on a broad range of issues, but they can also acknowledge that they have common interests in the sound management of federal facility environmental restoration and formally agree to work cooperatively to advance those interests. For example, an aggressive environmental justice-government federal facility environmental restoration agenda might include the following:
Federal agencies need the participation of the environmental justice community in their environmental restoration activities for several reasons: first, justice demands that minority and low-income neighbors of federal facilities participate in federal facility environmental restoration decision-making on an equal footing as other stakeholders; second, Executive Order 12898 requires it; and third, addressing environmental justice concerns will make decision-making more fair and therefore, more publicly acceptable. Environmental justice organizations need the support of federal agencies to develop the technical and analytical expertise, organizations and alliances that will enable them to influence the broad range of federal facility environmental restoration activities including: setting budget priorities; establishing research and technology development agendas; and, developing cleanup standards. This expertise and these organizations and alliances are the same that will be required to address distributional inequities in all environmental protection policies, programs and activities.