Justice and Natural Resources: Concepts, Strategies, and Applications / Edition 1

by Kathryn Mutz, Gary Bryner, Douglas Kenney, Gerald Torres

Overview

Just over two decades ago, research findings that environmentally hazardous facilities were more likely to be sited near poor and minority communities gave rise to the environmental justice movement. Yet inequitable distribution of the burdens of industrial facilities and pollution is only half of the problem; poor and minority communities are often denied the benefits of natural resources and can suffer disproportionate harm from decisions about their management and use.

Justice and Natural Resources is the first book devoted to exploring the concept of environmental justice in the realm of natural resources. Contributors consider how decisions about the management and use of natural resources can exacerbate social injustice and the problems of disadvantaged communities. Looking at issues that are predominantly rural and western — many of them involving Indian reservations, public lands, and resource development activities — it offers a new and more expansive view of environmental justice.

The book begins by delineating the key conceptual dimensions of environmental justice in the natural resource arena. Following the conceptual chapters are contributions that examine the application of environmental justice in natural resource decision-making. Chapters examine:

• how natural resource management can affect a range of stakeholders quite differently, distributing benefits to some and burdens to others
• the potential for using civil rights laws to address damage to natural and cultural resources
• the unique status of Native American environmental justice claims
• parallels between domestic and international environmental justice
• how authority under existing environmental law can be used by Federal regulators and communities to address a broad spectrum of environmental justice concerns

Justice and Natural Resources offers a concise overview of the field of environmental justice and a set of frameworks for understanding it. It expands the previously urban and industrial scope of the movement to include distribution of the burdens and access to the benefits of natural resources, broadening environmental justice to a truly nationwide concern.

Product Details

ISBN-13:	9781559638982
Publisher:	Island Press
Publication date:	11/01/2001
Edition description:	New Edition
Pages:	384
Product dimensions:	6.00(w) x 9.00(h) x 1.00(d)

About the Author

Kathryn M. Mutz is affiliated with the Natural Resources Law Center of the University of Colorado.

Gary C. Bryner is affiliated with the Natural Resources Law Center of the University of Colorado.

Douglas S. Kenney is affiliated with the Natural Resources Law Center of the University of Colorado.

Read an Excerpt

Justice and Natural Resources

Concepts, Strategies, and Applications

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By Kathryn M. Mutz, Gary C. Bryner, Douglas S. Kenney

ISLAND PRESS

Copyright © 2002 Island Press
All rights reserved.
ISBN: 978-1-55963-898-2

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CHAPTER 1

BEYOND "TRADITIONAL" ENVIRONMENTAL JUSTICE

David H. Getches and David N. Pellow

Over the last three decades, scholars, activists, and policy makers have begun to pay attention to the impacts of environmental pollution on disadvantaged communities. Research in the 1980s and 1990s highlighted the fact that hazardous waste facilities were disproportionately located in poor and minority neighborhoods. But it was the stunning finding in a 1987 United Church of Christ study that race is the single most significant predictor of the location of these facilities that caught the attention of civil rights leaders, environmentalists, and policy makers. Legal scholars saw the potential for claims under the U.S. Constitution or statutes prohibiting racial discrimination and became interested. The ambit of environmental policy and activism that focuses on patterns where the poor and "people of color bear the brunt of the nation's pollution problem" became known as "environmental justice."

Characterizing the absence of environmental justice as environmental racism sharpened the appeal of the cause. A pioneer in the field, Bunyan Bryant, described environmental racism in terms that would move most Americans:

It is an extension of racism. It refers to those institutional rules, regulations, and policies or government or corporate decisions that deliberately target certain communities for least desirable land uses, resulting in the disproportionate exposure of toxic and hazardous waste on communities based upon certain prescribed biological characteristics. Environmental racism is the unequal protection against toxic and hazardous waste exposure and the systematic exclusion of people of color from environmental decisions affecting their communities.

The intersection of racial discrimination and environmental insult, both of which are eschewed in modern political rhetoric and public opinion, is where the environmental justice movement began.

The connection between race and the impacts of environmental harm is not news. Patricia Limerick's concluding chapter in this book explores this phenomenon, and others have begun to do so as well, through the emerging "new environmental history." One finding from this research is that different ethnic groups often face different forms of environmental inequality. For example, African Americans and Latinos face greater threats from pollution additions in urban areas, and many Native Americans who live on reservations confront the problems of resource extraction, including mining and timber harvesting. Asian Americans and Pacific Islanders in the United States often face environmental threats disproportionate to their numbers from occupational hazards and from contaminated fish.

That the realm of environmental justice should include diverse claims is, at first, an appealing notion. It seems no less an environmental justice issue whether the claim is to benefits or to burdens of environmental policies. Poor populations and people of color are harmed when there are no parks or open spaces near their neighborhoods or if high entrance fees limit their access to outdoor recreation. Equal enforcement of laws can have perniciously unequal effects: toxic pesticides are applied by predominately non-English-speaking migrant farm workers, with warnings and instructions on proper use printed only in English; Clean Water Act standards, as described by Barry Hill and Nicholas Targ in Chapter 12, are set to protect people ingesting an "average" quantity of fish but disregard American Indian cultures or poor non-Indian people who eat large quantities of fish for traditional or economic (that is, subsistence) reasons. Market-based pollution controls can be attractive but may produce unfair results. For instance, emissions trading can reduce overall pollution levels but leave "hot spots" near sources, typically in poor areas, where pollutants remain heavily concentrated.

Some communities are actually placed at a disadvantage by the strong application of environmental laws, such as when a low-income housing project is scrapped because it would violate a height limitation or obstruct someone's view. Consider, for example, a tribe that struggles internally to make the difficult decision to cut timber in wildlife habitat in order to provide income for its impoverished members and then confronts objections from environmentalists. In other instances, individuals or communities are excluded from environmental decision-making processes that impact their communities and their capacity to make a living from natural resource usage. For instance, in northern California, the U.S. Supreme Court allowed a highway and logging operation planned by the government to destroy a portion of a national forest after a study clearly concluded that the area was central to a tribe's traditional religion and would have a devastating effect on religious practices.

This book explores efforts to expand the realm of environmental justice to include concerns in which natural resources are developed, managed, and used in ways that exacerbate social injustice or disadvantages of communities of low-income people and people of color. The examples explored in several chapters are western and rural, thus expanding the concerns of a field that began with problems arising in urban, industrialized areas. The seminal challenge, as the field evolves, is to allow it to grow without losing its focus. The recurring questions in the book are: First, what kinds of actions and what types of harms constitute environmental injustice? Second, which communities can claim the attention of the environmental justice movement? And third, how do we remedy existing injustices and prevent future ones?

This chapter addresses the first two by asking how large a tent to erect in the name of environmental justice. The answer is relevant to determining the reach of government policy, the agendas of nonprofit organizations, and the kinds of solutions that can and will be pursued under the banner of environmental justice. While recognizing that there is a compelling argument for expanding the notion of environmental justice, we caution that, as a movement, environmental justice must find its limits. Given the reality that resources are limited and the capacities of individuals and groups for problem solving are finite, we urge that the environmental justice movement maintain its focus on communities that exhibit traditional characteristics of disadvantage—where high poverty levels, large populations of people of color, or both are concentrated.

Because this book examines the changing boundaries of a relatively new movement, its premise is that the field should be broader than the "traditional" environmental justice issues, such as the concentration of polluting facilities in neighborhoods of poor people and people of color and the failure to enforce environmental laws against polluters in these areas as rigorously as in other areas. As awareness of the scope of environmental inequities has grown, the ambit of environmental justice issues has stretched well beyond attacking the classically urban problem of undesirable facility siting and unequal pollution impacts.

Origins: A Problem in Search of a Movement

Since the time of the first "civilizations," the refuse, effluence, and detritus in cities have been concentrated in the quarters where low-income populations and ethnic groups lived. Today, the unsavory idea of dumping the waste of an affluent society on the poorest and most vulnerable neighborhoods is discomfiting to most people and is gaining greater political attention as a social problem.

"Discovery" of a Problem

Social scientists, activists, some government agencies, and the public health community long ago recognized the issue of disparate treatment of racially identifiable regions in waste disposal in the United States. Official, and then public, notice came more slowly. As early as 1971, the Council on Environmental Quality recognized the links between racial discrimination and the adverse effects of environmental quality on the urban poor. Sociologist Robert Bullard began his path-breaking work in 1979 with a study of one black community's battle against a landfill. The siting issue was finally elevated to national attention in the late 1980s, after the U.S. General Accounting Office revealed that three out of four hazardous waste facilities in one U.S. Environmental Protection Agency (EPA) region were located in African American communities, and the United Church of Christ issued its famous report concluding that race is the single most significant factor in waste facility siting (see Box 1.1). Later studies either almost universally corroborated these conclusions or added further evidence.

As powerful and convincing as the evidence was, it did not immediately lead to an organized movement. This was probably because the problems raised issues at the intersection of two well-established movements with well-defined agendas: civil rights and environmentalism. As a result, the environmental justice movement struggled to find an identity of its own. Like other social movements, it was inspired by problems, and as those problems were demonstrated and gained public understanding, they should have been ripe for political action and organizing efforts. The civil rights movement, for example, could rally against Jim Crow laws and develop "programs" in such areas as voting rights and public accommodations. Likewise, the environmental movement was galvanized by its pursuit of a legislative agenda aimed at remedying palpable water and air pollution problems and cleaning up hazardous wastes. Organizations were formed to champion the needed litigation and legislative reforms. By contrast, even after studies alerted the public to the nature of environmental justice problems, it was difficult for people outside disadvantaged neighborhoods to see the problems, and legal remedies were hard to find. Environmental justice lacked a discrete, well-defined agenda around which dedicated organizations could coalesce. Some civil rights and environmental organizations were able to incorporate environmental justice issues within the larger causes on their agendas, but initially at least, they were relatively poor cousins of the core concerns that motivated these groups.

Looking to the Law: Wrongs without a Remedy?

Environmental justice cases found their way into the courts about twenty years ago. Claims under the civil rights laws, even when they were based on the demonstrable, racially discriminatory distribution of environmental impacts, were largely unsuccessful in the courts. From the earliest cases, it has been difficult to prove the facts needed to win such a case. One problem is the cost and difficulty of proving that the impacts are distributed along racial lines in a particular neighborhood. Even if the statistical proof can be made, there is a legal problem. Current U.S. Supreme Court law requires a showing of intentional discrimination to prove an equal protection claim.

Accordingly, lower courts have denied environmental justice claims for failure to prove intentional discrimination. Bean v Southwestern Waste Management Corp (1979) involved a challenge to the decision by the Texas Department of Health to grant a permit to Southwestern Waste Management to operate a solid waste facility in a community of color. While the court found that the statistical data the plaintiffs marshaled revealed "unfortunate and insensitive" corporate behavior, this evidence fell short of proving discriminatory intent. Ten years later, in East Bibb Twiggs Neighborhood Assoc. v Macon-Bibb County Planning & Zoning Comm'n (1989), plaintiffs used an equal protection theory to challenge a permit for landfill siting in a predominantly African American community. This theory failed because, as in Bean, the plaintiff failed to show either discriminatory intent or a historical pattern of discriminatory conduct.

Title VI of the Civil Rights Act of 1964 prohibits "discrimination under any program or activity receiving Federal financial assistance." As implemented by agency regulations, Title VI seems to impose stronger protections than the U.S. Constitution's equal protection clause. Indeed, although the Supreme Court had said Title VI does not, by itself, vitiate the need for a showing of intentional discrimination, it held in Guardians Ass'n v Civil Serv Com'n of City of New York that Title VI regulations could prohibit unintentional discrimination. Thus, black and Hispanic policemen who were disproportionately affected by a layoff policy could sue to enforce an agency regulation under Title VI that prohibited discriminatory effects. The EPA's virtually identical regulation under Title VI prohibits any recipient of federal funds from "administering its program [to] have the effect of subjecting individuals to discrimination because of their race." After Guardians Ass'n was decided, environmental justice advocates seized on this regulation prohibiting discriminatory effects and attempted to apply it to the uneven impacts resulting from a concentration of waste facilities being located largely in black neighborhoods.

A federal court of appeals accepted this argument in Chester Residents Concerned for Quality Living v Seif. The court held that plaintiffs could sue under the regulations and would only have to prove disparate impact. But then the proposal to locate the new waste facility was withdrawn, and the matter became moot. After this it was not necessary to address the question of whether such a suit was proper, so the U.S. Supreme Court vacated and remanded the decision. But this left the door open to such suits under Title VI. Then in 2001 the Supreme Court spoke directly enough to the issue to dash the hopes of environmental justice advocates for asserting Title VI unless they can prove that discrimination was intentional. In Alexander v Sandoval, a case challenging English-only driver's license examinations, the Court ruled that although the Department of Justice had issued regulations prohibiting disparate racial impacts of state programs receiving federal assistance, private individuals have no right to sue to enforce the regulations. For further discussion of Title VI, see Luke Cole's discussion in Chapter 8.

Although it was clear that creative thought was needed to find effective remedies for apparently discriminatory impacts of environmental insults and uneven enforcement of environmental laws, legal scholars only recently have given serious attention to the field of environmental justice. Most scholarship has focused on the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 as tools for protecting citizens against "disparate impact." In the 1990s, major symposia were held that advanced scholarly attention to environmental justice, resulting in more publications on the topic. For example, the University of Colorado Law Review's symposium "Race, Class, and Environmental Regulation," held in 1992, explored the melding of environmental and civil rights legal approaches. For many activists who had been involved in both the civil rights movement and the struggle for environmental justice, this fusion made sense. Attorneys like Luke Cole, who were practicing environmental poverty law, were at the cutting edge of this approach.

Some legal scholars have proposed a wider range of claims, suggesting that the Fair Housing Act would be more promising than Title VI as a tool for making legal claims to environmental justice. Meanwhile, some litigants have pursued legal theories outside the civil rights laws. For instance, in El Pueblo para el Aire y Agua Limpio v County of Kings, a Latino community successfully used the public participation provisions of California's Environmental Quality Act to overturn a decision to permit a toxic waste incinerator. The plaintiffs charged that the environmental impact statement and the public hearings required by the law were written and conducted only in English, producing a barrier to participation for the 40 percent of the population who spoke only Spanish (see Box 1.2).

(Continues...)

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Excerpted from Justice and Natural Resources by Kathryn M. Mutz, Gary C. Bryner, Douglas S. Kenney. Copyright © 2002 Island Press. Excerpted by permission of ISLAND PRESS.
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Table of Contents

Contents

List of Acronyms
List of Cases
List of Statutes
Foreword
by Gerald Torres, University of Texas School of Law
Acknowledgments
Introduction
Part One. Frameworks
Chapter 1. Beyond ""Traditional"" Environmental Justice
David H. Getches and David N. Pellow
Chapter 2. Assessing Claims of Environmental Justice:
Conceptual Frameworks
Gary C. Bryner
Chapter 3. Water, Poverty, Equity, and Justice in Colorado:
A Pragmatic Approach
James L. Wescoat Jr., Sarah Halvorson,
Lisa Headington, and Jill Replogle
Chapter 4. International Environmental Protection: Human
Rights and the North-South Divide
Tseming Yang
Part Two. Concepts
Chapter 5. The Coincidental Order of Environmental
Injustice
Jeff Romm
Chapter 6. Environmental Justice in an Era of Devolved
Collaboration
Sheila Foster
Chapter 7. Tribal Sovereignty and Environmental
Justice
Sarah Krakoff
Part Three. Strategies and Applications
Chapter 8. Expanding Civil Rights Protections in
Contested Terrain: Using Title VI of the Civil
Rights Act of 1964
Luke W. Cole
Chapter 9. Forest Management and Environmental Justice
in Northern New Mexico
Henry H. Carey
Chapter 10. NEPA in Indian Country: Compliance
Requirement to Decision-Making Tool
Dean B. Suagee
Chapter 11. A Framework to Assess Environmental Justice
Concerns for Proposed Federal Projects
Jan Buhrmann
Chapter 12. Protecting Natural Resources and the Issues of
Environmental Justice
Barry E. Hill and Nicholas Targ
Chapter 13. Mineral Development: Protecting the Land and
Communities
Kathryn M. Mutz
Conclusion
Chapter 14. Hoping Against History: Environmental Justice
in the Twenty-first Century
Patricia Nelson Limerick
About the Authors
Index"