at 10,684; see FOSTER & C OLE, supra note 19, at 10 “Environmental hazards are inequitably distributed in the United States, with poor people and people of color bearing a greater share
The U.S Environmental Justice Movement: An Overview
A Background: Activism to Achieve Distributive, Procedural, and Corrective Justice
Noted sociologist Professor Robert Bullard characterized “urban ghettos, barrios, ethnic enclaves, rural ‘poverty pockets,’ and Native American reservations” as “invisible communities.” 32 White and middle-class
31 C ITIZEN S UBMISSION ON E NVTL E NFORCEMENT , M ETALES Y D ERIVADOS F INAL F ACTUAL
Record SEM-98-007 (February 11, 2002) is available at http://www3.cec.org/islandora/en/item/11644-expediente-de-hechos-metales-y-derivados-derecho-y-politicas-ambientales-en-am-en.pdf All factual records cited in this article are accessible online through the Registry of Submissions of the Commission for Environmental Cooperation (CEC) at http://www.cec.org/sem-submissions/registry-of-submissions (last visited June 22, 2016).
32 Robert D Bullard, Environmental Racism and “Invisible” Communities, 96 W V A L R EV
Scholars highlight an environmental justice divide: communities that successfully mobilize around “not in my back yard” (NIMBY) opposition to hazardous activities win political leverage and receive faster, stronger government responses to environmental complaints, while politically weak, invisible communities bear siting of waste facilities and incinerators, as well as hazardous operations like lead smelting and resource extraction that relies on dangerous pesticides or leaves toxic byproducts Because corporations often pursued polluting activities with government permission but without adequate oversight, existing laws failed to shield these vulnerable communities from harm; instead, they faced ongoing exposure to pollution and weaker protections.
“those with political and economic power have used environmental laws in ways which have resulted in poor people bearing a disproportionate share of environmental hazards.” 36
To change the status quo, communities had to become more visible, and they did so by adopting civil rights and anti-toxics tactics to disrupt a political and judicial system stacked against them They rejected the top-down model of mainstream environmentalism in favor of grassroots activism, and redefined the environment as the places where people live, work, play, and go to school rather than distant flora and fauna to be saved Many commentators trace the origin of the Environmental Justice Movement (EJM) to Warren County, North Carolina, whose example illustrates how these communities mobilized for change.
Following the illegal spraying of waste contaminated with polychlorinated biphenyls along a North Carolina highway in 1978, the state decided to construct a storage site for the PCB-contaminated soil near Afton in Warren County This community was predominantly African American, underscoring how hazardous waste decisions have historically affected minority neighborhoods in rural North Carolina.
33 Id at 1041; Cole, supra note 21, at 646–47
34 Bullard, supra note 32, at 1041; Monsma, supra note 1, at 454–55; see Pearl Kan, Towards a
Environmental justice argues that the hazards and external costs generated by the frenetic productivity of capitalism are not distributed evenly The burden falls most heavily on the most vulnerable and the poor, a consequence of corporate power facing relatively little resistance This dynamic underpins climate justice discussions around displacement, highlighting how power imbalances shape who stays put and who must move.
35 C OLE & F OSTER , supra note 19, at 11; Kang, supra note 20, at 122; Yang, supra note 12, at
37 Kan, supra note 34, at 35–36 (“The discursive and disruptive force of the environmental justice movement ultimately makes visible communities and peoples that the late modern machine discounts as disposable.”)
Cole and Foster identify the Civil Rights Movement of the 1950s–1970s as perhaps the most significant source feeding today’s Environmental Justice Movement, underscoring its enduring influence They also describe the anti-toxics movement as the second major tributary of the EJM, highlighting how environmental health concerns intertwine with civil rights issues Kan adds that taking a stand against the status quo is inherently destabilizing, capturing the disruptive yet transformative energy at the heart of environmental justice advocacy.
39 C OLE & F OSTER , supra note 19, at 12–13, 16
40 C OLE & F OSTER , supra note 19, at 16; Robert D Bullard, Leveling the Playing Field Through
42 Dollie Burwell & Luke W Cole, Environmental Justice Comes Full Circle: Warren County
Environmental-justice activism by local residents, aided by the local NAACP chapter and a church, launched a campaign against the dump that began with community- and government-organized meetings and evolved into concrete action, including fundraising for an independent scientific assessment of the site; a lawsuit alleging racial discrimination and violations of environmental laws—supported by the community—failed to stop construction, but on the first day contaminated soil arrived, protests blocked dump trucks, and the demonstrations drew national media attention The protests, while not halting the project, spurred increased minority voter registration and the election of African American officials who enacted buffer zones and banned new dumping; when PCBs later leaked from the site, residents joined a detoxification task force that required contractors to attend public meetings and clearly explain their roles and the process.
Over time, this activism evolved into a national environmental justice movement that scholars describe as pursuing several intersecting forms of justice Distributive justice addresses the disproportionate public health and environmental risks borne by people of color and low-income communities; while economic development, transportation, and waste management generate benefits, the distribution of these benefits and costs remains inequitable and unjust A telling illustration is the PCB contamination that spread along hundreds of miles of North Carolina highways, shaping the view that Warren County—home to a large share of the state’s African American population—would bear the waste-dump risks so that whiter communities elsewhere would not have to Numerous studies show a persistent link between minority communities and higher exposure to environmental pollutants and related health hazards.
Environmental hazards are not distributed equally in the United States; poorer communities and communities of color bear a disproportionately larger share of pollution than wealthier, white populations This reality underpins environmental justice, which encompasses unequal protection, differential exposure, and uneven enforcement of environmental, public health, civil rights, and housing laws.
52 Mihaela Popescu & Oscar H Gandy, Jr., Whose Environmental Justice? Social Identity and
Institutional Rationality, 19 J E NVTL L & L ITIG 141, 189 (2004); see Allan Kanner, Environmental
Justice, Torts and Causation, 34 W ASHBURN L.J 505, 506 (1995) (writing that “toxic communities” bear the health, economic, and quality of life risks and burdens)
53 Burwell & Cole, supra note 42, at 11, 14–15 environmental hazards like automobiles, industrial facilities, toxic waste disposal and incinerators, and toxic products like lead paint 54 Distributive justice seeks to remedy this imbalance
Procedural justice seeks to distribute environmental harms and benefits fairly by guaranteeing the right to equal concern and respect in political decisions about how burdens and benefits are shared, and it emphasizes democratic decision-making built on inclusiveness, representation, parity, and open communication so affected communities can access legal and technical resources and have an equal voice at every level of decision making The Warren County example shows a gap: authorities invited residents to informational meetings about the facility, but residents were not given a seat at the siting decision, illustrating why genuine participation matters.
After protests compelled changes in local government, residents joined the task force addressing leaks at the site and gained a meaningful voice when the government heeded their demand to detoxify the site rather than relocate the waste to another community The movement pushes its agenda through protests and other confrontational tactics, and activists frequently use adversarial legal actions against the agents of harm as well as government decision-makers as part of their strategy Two communications professors argue that the movement's identity emerged gradually through interactions with the actors who contested it—the courts, administrative agencies, and the agents of harm Ideally, litigation can prevent environmental threats before they occur by challenging siting decisions.
54 C OLE & F OSTER , supra note 19, at 10; Lisa A Binder, Religion, Race, and Rights: A Rhetorical Overview of Environmental Justice Disputes, 6 W IS E NVTL L.J 1, 6–7 (1999); Monsma, supra note 1, at 451
55 Kuehn, supra note 22, at 10,688 (citing R ONALD D WORKIN , T AKING R IGHTS S ERIOUSLY 273 (1977))
56 Id (citing R OBERT D B ULLARD , D UMPING IN D IXIE : R ACE , C LASS , & E NVIRONMENTAL
58 Burwell & Cole, supra note 42, at 14–15
60 E.g., K EVIN M ICHAEL D E L UCA , I MAGE P OLITICS 74–78 (1999) (describing theatrical protests like carrying the casket of “Kentucky” to the state capital so that it could be “buried in waste”); see id at
80 (referring to the “use of confrontational tactics and local activists” by environmental justice groups); Roesler, supra note 19, at 231 (writing that today’s calls for environmental justice are shaped by a history of opposition to both law and mainstream environmentalism)
61 E.g., Cole, supra note 20, passim; Kang, supra note 20, passim; Kyle W La Londe, Who Wants to Be an Environmental Justice Advocate?: Options for Bringing an Environmental Justice Complaint in the Wake of Alexander v Sandoval, 31 B.C E NVTL A FF L R EV 27 passim (2004); see Popescu & Gandy, supra note 52, at 152–57 (identifying local, state, and federal administrative agencies and the agents of harm—those “involved in the management of waste, the production of energy, or the production of goods and services that have accompanying ‘spillover effects’”—as defendants in environmental justice lawsuits)
Popescu and Gandy, citing supra note 52, at 143, discuss permits in the context of potential harm Often, harm to persons and property already exists—and sometimes the source of that harm remains—so communities must litigate to obtain compensatory and equitable relief.
The drive for remedies ties the environmental justice movement to the tort-based origins of environmental law, with claims for nuisance and trespass protecting property and negligence and strict liability addressing harm to people, and it makes corrective justice a central aim Professor Robert Kuehn prefers the term corrective justice over a narrower retributive justice because it encompasses both punishment for environmental law violations and remediation of injuries caused by harmful acts Remedies imply compensatory justice—monetary damages designed to restore the victim to the condition they would have been in if the injury had not occurred—yet the corrective frame rejects the idea that payment alone makes an unjust act acceptable After all, invisible communities seek visibility to change the status quo, and the ability to vindicate claims reveals the unequal burdens these communities have borne.