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Environmental Justice

Background

Although communities of color and the poor have been heavily and disproportionately affected by noxious and risk-producing environmental practices for decades, the issue of environmental racism did not gain national prominence until the 1980s. Several high-profile events brought national attention to the issue, including a demonstration against the siting of a hazardous waste landfill in a predominantly African-American county in North Carolina; a General Accounting Office report finding that, in one U.S. region, large, commercial hazardous waste facilities were more likely to be sited in African-American communities; and a national study finding a positive correlation between minority racial status and proximity to commercial hazardous waste facilities and uncontrolled waste sites. EPA reviewed this and other evidence and concluded in a 1992 report that racial and ethnic minorities were disproportionately subjected to exposures to air pollutants, hazardous waste facilities, contaminated fish, and agricultural pesticides, and that African-American children were disproportionately subject to high blood lead levels and to the accompanying adverse health effects. At that time, a National Law Journal investigation also found racial disparities in the enforcement of federal environmental laws. Subsequent studies, mostly regional in scope, tend to reinforce many of the findings of this early research.

This research spawned a vast literature attempting to explain the disparities in terms other than race or ethnicity. Market dynamics, in particular, was offered as an alternative explanation for the disparities: as one theory had it, the presence of a polluting facility led to lower land values, which in turn encouraged minority groups to move into the neighborhood. Numerous studies explored such possibilities but found little evidence of post-siting "move-in" by people of color. At the same time, numerous studies found evidence that certain types of facilities tended to be disproportionately sited in such communities in the first instance (particularly Hispanic communities, low-income and working-class communities, and communities experiencing a population shift from one ethnic group to another). Even so, conclusive judgments about the reasons for all of the disproportionate environmental burdens borne by communities of color remain elusive.

At the same time, researchers' fixation on causation in siting decisions has deflected attention away from the more fundamental questions of whether, regardless of the cause, such marked inequality in risk distribution is to be condoned, and assuming it is not, what is to be done about existing disparities. These disparities persist not just in the siting of undesirable facilities but in a wide range of decisions affecting the environment, including standard setting, program design, enforcement, the cleanup of contaminated properties, and exclusionary regulatory processes. In the last 15-20 years, communities of color and poor communities, and organizations representing them, have persistently challenged disparities resulting from the current system. Numerous failings of the environmental regulatory system have been identified and challenged in recent years.

What People are Fighting About

In the area of standard setting, EPA and other agencies employ scientific risk assessments to support environmental standards that often do not take into account the special characteristics of communities of color and low-income communities. For example, in developing water quality criteria, environmental agencies estimate an average fish consumption that ignores the higher rates of fish consumption among Native Americans and other ethnic minorities. In developing standards for protecting farm workers (who are primarily Latino) from pesticide risks, the agencies estimate exposure without recognizing that young children, even infants, go into the fields with their parents, and that children and infants may be more likely than adults to be hurt by these exposures. As a result of such inappropriate assumptions, agencies fail to propose standards that are sufficiently protective of vulnerable ethnic and racial groups. This lack of regulatory protection is then compounded by these groups’ inadequate access to health care.

From a broader perspective, the current chemical-specific, media-specific approach to assessing and managing risks fails to account for the real-world reality that many persons of color and poor persons are exposed to many different pollutants on a daily basis to a greater degree than other persons. Indeed, because pollutants may have cumulative and even synergistic effects that are not captured when risks are assessed one pollutant at a time, the current regulatory approach may badly underestimate overall pollution problems in minority communities.

In the area of program design, gushing enthusiasm for pollution trading has often overlooked the potential of trading programs to cause or exacerbate toxic “hot spots.” Most of the older, larger, and dirtiest facilities – such as power plants, oil refineries, and chemical plants – are located in communities where people of color and poor people live. These facilities are more likely than newer facilities to buy credits to pollute in lieu of controlling their own pollution because of the high costs of retrofitting existing plants. The result is that a trading scheme can result in higher concentrations of dangerous pollution – “hot spots” – in poor areas and where persons of color live than in the rest of the area covered by the trading program. The failed “car scrapping” program in Los Angeles is a case in point. Oil refineries, located in predominately Latino neighborhoods, were allowed to avoid controlling pollution at their marine terminals in Los Angeles in return for buying and then scrapping older, more polluting cars. The result was that the workers in the refineries and the nearby Latino communities, who were already experiencing inordinately high cumulative exposures to a wide variety of pollutants, were exposed to even more toxic air emissions; the pollution that had been spread throughout the metropolitan area in the form of motor vehicle emissions ended up concentrated in these already heavily effected neighborhoods. (For more information on the severe failings of this program, see CPR’s Perspective on Emissions Trading)

Advocates of pollution trading criticize conventional regulation, which often requires companies to install the best technology available to control pollution, and point to the cost savings promised by trading. They have not, however, come to grips with the potential for market regimes to cause or exacerbate hot spots. Environmental agencies, for their part, implicitly assume that hot spots will not occur despite evidence to the contrary, and they make no attempt to measure the health, social and environmental impacts of hot spots, much less prevent them by program design. What is more, most industry and academic advocates of pollution trading focus exclusively on the potential of trading to produce pollution reduction that is more economically efficient, and they simply do not concern themselves with how trading can reinforce and extend existing patterns of social and economic inequality.

A further problem arises from the use of cost-benefit analyses to evaluate the potential of a wide range of proposed regulations. Several specific aspects of the methodology used in cost-benefit analyses ignore or even reinforce the potential for environmental inequities. For example, economic analysts routinely “discount” estimates of the number of human lives a proposed regulation is expected to save. As explained in greater detail in CPR’s Perspective on Cost Benefit Analysis, the use of discounting is highly controversial because it artificially reduces the magnitude of the benefits expected from regulations that reduce the number of persons who suffer from chronic diseases or diseases with long latency periods (such as cancer). Discounting particularly shrinks the value of protecting persons of color and poor persons because such persons experience rare cancers and chronic illnesses with disturbingly high frequency. Adding insult to injury, the Bush administration intends to use “quality-adjusted life years” in its regulatory analysis. This approach measures the social value of a regulation based on the number of additional years people protected by the regulation can be expected to live because of the regulation. Thus, according to this approach, there is less value in prolonging the lives of the elderly and of people with poor health than in prolonging the lives of young and healthier people. Because people of color and the poor tend to live shorter and less healthy lives than the wealthy and white, this technique could end up being a complex and furtive way of downgrading the social value of protecting communities of color and low-income communities.

Enforcement is another area in which people of color and the poor fare worse than the general population. (See CPR’s Perspective on Environmental Enforcement.) As noted, an early study by the National Law Journal found disparities in the public enforcement of federal environmental laws. Although empirical evidence is this area is scarce, several factors might contribute to enforcement disparities. The states are often the front-line enforcers of federal environmental law, yet they differ significantly in their ability and willingness to do this job. (See CPR’s Perspective on Devolution) And some of the states with poor enforcement track records have large African-American, Latino, and/or low-income populations.

Because of the degree of discretion regulatory agencies have to prosecute violations or impose penalties, people of color and poor persons can do little in the face of lax enforcement by public officials. For these communities, even private citizen lawsuits are no panacea. Such litigation can be complicated and resource-intensive, making it difficult for financially strapped community groups to underwrite the sophisticated monitoring, sampling, and analysis – let alone the sophisticated legal work – required to detect and challenge permit violations.

The cleanup of contaminated properties also raises several environmental justice issues. The divestment and blight that accompanies areas with more than their share of contaminated sites leaves people of color and poor persons who live nearby in a difficult situation. The first problem is that these areas have to compete with other contaminated sites for government cleanup resources. The 1992 National Law Journal report, previously mentioned, supports the claims of environmental justice advocates that sites in their communities are often neglected or receive less effective cleanups than sites in wealthier, predominantly white areas. Since this report, EPA-sponsored “brownfield” initiatives have offered some improvement by promoting community involvement in cleanup decisions. However, many contaminated sites are relegated to state brownfield programs because, although still dangerous, they are not contaminated enough to qualify for a federally sponsored cleanup. State brownfield programs vary widely in the degree of community involvement and cleanup. Moreover, because brownfield redevelopment projects often allow less stringent cleanup standards in light of anticipated industrial re-use, they have a tendency to lock in the legacy of industrial development in areas where people of color and poor persons live. Although there is typically a serious attempt to control the exposure to remaining hazardous wastes through physical means such as capping and through legal means such as deed restrictions, surrounding communities are left with the risk that these controls will fail.

Relocation of residents living near more contaminated sites or polluting factories raises its own set of environmental justice issues, largely due to the fracturing of existing community bonds and the inability of individual residents to secure comparable housing at the prices offered under the terms of the relocation. Too often, residents are offered the “fair market value” of the home located in the hazardous area, an amount sharply deflated precisely because of the environmental risks and therefore not enough to buy a comparable dwelling in a safer neighborhood. The relocation process itself can consume an enormous amount of the community’s time and resources.

Finally, environmental justice advocates have consistently raised issues about environmental decision making and public participation. Environmental decision makers traditionally have heard the views of industry giants, conventional environmental organizations, state and local governments, and federal land managers, but not the people who actually live in the most affected areas. Gaining access to the fora where important environmental decisions are being resolved has been a large priority of environmental justice communities and organizations. Even where access is allowed, meaningful participation can be difficult; conventional stakeholders have significantly more time, money, and other resources to participate in these processes and influence agency policy and implementation. Environmental justice advocates often lack the resources to participate as effectively in such a highly technical arena, and this fundamentally tilted playing field significantly compounds the problems explained above, producing bad decisions that harm public health.

Because local environmental justice organizations operate on such slender budgets, they must rely heavily upon publicly available information. They are thus disproportionately disadvantaged by the current administration’s stingy approach to public information. The administration’s expansive interpretation of exemptions under the Freedom of Information Act, the information-limiting features of the Homeland Security law (See CPR’s Perspective on Secrecy), and the administration’s aggressive implementation of the Data Quality Act (for more, See CPR’s Perspective on Data Quality), all threaten to curtail the amount of information available to people of color and poor persons and other groups. In concert these initiatives may allow firms to withhold information about hazardous emissions, accidents, and other risks posed by power plants, nuclear facilities, refineries, chemical plants, and other large facilities. Historically, communities where environmental justice is an issue have relied heavily upon publicly available information not only to find out about the risks they face, but also to help demonstrate racially disparate patterns of exposure. As these communities have learned in the past two decades, information is power, and the move toward greater secrecy will surely serve to disempower our most environmentally vulnerable communities.

CPR's Perspective

Communities dominated by persons of color and poor persons have a right to participate fully and meaningfully in decisions affecting them, and society has an obligation to reduce the environmental burdens these communities disproportionately experience. No one perspective can capture all of the variety and nuances of the environmental justice movement; indeed, a defining feature of the movement is its very heterogeneity and resistance to categorization. Even so, however, many environmental justice organizations did collectively adopt a set of common principles in 1991. Two broad goals – self-determination and enhanced environmental protection – are consistent with those principles and are pursued aggressively by environmental justice communities. CPR supports the continuing efforts of environmental justice organizations and advocates the following reforms in pursuit of the goals of self-determination and environmental protection:

• Full and meaningful access to decision making processes concerning the environment, including providing resources (such as expert assistance) needed to ensure meaningful participation by communities where environmental justice is an issue;

• Due consideration of the special vulnerabilities of minority communities in the assumptions used in the scientific risk assessments underlying environmental standards;

• Careful consideration of the possibility that toxic “hot spots” will be created by pollution trading programs, and elimination of the potential for such hot spots through program design, such as precluding trading in highly toxic chemicals that have a localized effect;

• Elimination of analytical approaches (such as discounting and quality-adjusted life-years) that threaten systematically to undervalue the lives and health of members of communities of color and low-income communities;

• Targeting inspections and other enforcement actions in communities that host a disproportionate share of polluting facilities; and

• Continued and enhanced disclosure of information to the public concerning environmental risks, government enforcement patterns, government cleanup decisions, and the like.