CPR Perspective: Environmental Justice at Stake

The Issue Whether communities of color, tribes and indigenous peoples, and poor communities will continue to suffer disproportionately high exposures to environmental risks.

Although communities of color, tribes and indigenous peoples, 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. A National Law Journal investigation conducted that year also found racial disparities in the enforcement of federal environmental laws. Subsequent studies tend to reinforce many of the findings of this early research, concluding that the association between race and environmental hazards appears to be increasing over time.

This earlier research prompted a robust debate about the cause of racial disparities in environmental hazard exposure. Market dynamics, in particular, were 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. Ultimately, subsequent studies found little evidence of post-siting "move-in" by people of color. However, these studies did find evidence that certain types of facilities tend to be disproportionately sited in, 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.

Researchers' fixation on identifying the nature of "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 should 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, environmental services such as flood control and emergency response, and availability of environmental amenities such as parks and open space. In the last 15-20 years, communities of color, tribes and indigenous peoples, poor communities, and all of the organizations representing them, have persistently challenged disparities resulting from the current system, often working in regulatory processes where influential groups have significant advantages. Despite the absence of a "level playing field," numerous failings of the environmental regulatory system have been identified and challenged in recent years.

Before turning to these failings, it is also important to recognize that issues of environmental justice involve more than traditional regulatory issues. For example, despite significant warnings, in the days before Hurricane Katrina hit New Orleans, the federal government did nothing to evacuate over 100,000 transit-dependant residents (largely African-American) who were trapped in the path of what was then a Category 5 hurricane, leaving vulnerable people to attempt to avoid risk to themselves notwithstanding their lack of resources. In the end, some 1,300 people died, in part because of this neglect. During the months that followed, the federal government has been unacceptably coy about disclosing to the people of New Orleans the toxic risks that remain in the wake of the hurricane. These are, fundamentally, issues of environmental justice, even though they do not look like the more traditional siting decision or the like, which defined the early movement for environmental justice.

Finally, in a development that has shocked most observers of environmental policy, the Bush Administration recently announced it is proposing to weaken its environmental justice strategy by refusing to consider the well-documented fact that people of color suffer disproportionately significant exposures to pollutants and other environmental risks. Once again, this action means that EPA has opted for an approach that intentionally ignores reality. The Bush Administration's new proposal is particularly surprising given the existence of an Executive Order on environmental justice, which was signed by former president Clinton but not explicitly rescinded by the Bush Administration. That Executive Order clearly prohibits, and therefore requires consideration of discrimination on the basis of race, age, gender, national origin, or religious affiliation.

In sum, environmental injustice is a complicated condition that not only originates in our legacy of overt racial discrimination, but is persistent and continues unabated in subtle institutional dynamics. To root out and correct existing environmental inequities will take more than denial and studied indifference.

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 rate that ignores the higher rates of fish consumption among some 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. Increasingly, agencies have looked to "risk avoidance" measures, such as fish consumption advisories, which shift the burden to those exposed to protect themselves, for example, by reducing or eliminating fish from their diets. This lack of regulatory protection is then compounded by these groups' inadequate access to health care. (For an in-depth discussion of the environmental justice issues raised by risk assessment and environmental standard setting, see CPR's White Paper on Environmental Justice.) Indeed, EPA's failure generally to take into account of environmental justice in standard setting has been noted by the Government Accountability Office, which recently criticized EPA's rulemaking efforts under the Clean Air Act on these grounds.

From a broader perspective, the current chemical-specific, media-specific approach to assessing and managing risks fails to account for the reality that many persons of color and poor persons are exposed to multiple 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 that aggregate in poor and minority communities.

What's At Stake? The right of citizens, regardless of their race, ethnicity, or economic class, to have a say in decisions affecting their lives, health, and environment, and to enjoy governmental protections that are equivalent to those enjoyed by other citizens.

In the area of program design, 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 in the "fence line" and down-wind communities where persons of color and the poor live, than in the rest of the area covered by the trading program. The failed "car scrapping" program in the Los Angeles area 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, heavily 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 as facility-related emissions in these already heavily affected 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 overall "efficiency" of emissions trading - a criterion that is simply unconcerned with any distributive consequences. The popularity of these regimes persists despite the potential for pollution trading to perpetuate or exacerbate existing patterns of social and economic inequality. For example, the EPA was recently criticized by the Government Accountability Office and the EPA's Inspector General for failing adequately to address the potential for hot spots in its Clean Air Mercury Rule, which introduces a cap-and-trade approach to address mercury emissions from coal-fired utilities. (For additional explanation of these failures, see CPR's Mercury Perspective).

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 in the future. As is 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 address chronic diseases or diseases with long latency periods (such as cancer). This form of 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. Phenomena popularly termed "cancer clusters" have surfaced, for example, in communities built on landfills and near large polluting facilities.

Adding insult to injury, the Bush administration favors the use of "quality-adjusted life-years" in its regulatory analysis. This approach goes even further than measuring (discounted) lives saved and attempts to measure the social value of a regulation based on the quality of additional years people 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 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. It also potentially assigns a lesser value to the remaining life-span of elders, a judgment that may reflect dominant society values but that may be at odds with the cultural understandings of some non-dominant groups. Enforcement is another area in which people of color and the poor fare worse than the general population. (For additional discussion of these issues, 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 in this area is scarce, several factors might contribute to enforcement disparities. The enforcement process contains innumerable discretionary decision points, providing multiple opportunities for decision makers to act on conscious or unconscious biases. Moreover, enforcement decisions are relatively informal (as compared to rulemaking or other administrative decisions), and studies have found that informal processes are more vulnerable to discrimination. In addition, 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. (Further analysis of the federal/state "partnership" is contained in the see CPR 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 large 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 may not be an option if the public officials have given violators favorable settlements and generous compliance schedules. Even if such lawsuits are possible (because public officials have taken no action), 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 complicated legal work - required to detect and challenge permit violations. Finally, even were we to assume completely evenhanded enforcement, because people of color and poor communities are disproportionately located near polluting facilities, they would still experience greater pollution as a result of the ongoing, well documented rate of substantial noncompliance by regulated entities.

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. Moreover, this problem may increase because resources for government cleanups are becoming ever scarcer, especially since Congress has refused to reauthorize a tax on the chemical and oil industries that in the past funded such cleanups. The 1992 National Law Journal report mentioned above 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.

EPA-sponsored "brownfield" initiatives have offered some improvement by promoting community involvement in cleanup decisions. However, many of the less contaminated sites are relegated to state brownfield programs that vary widely in the degree of community involvement and cleanup. 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 fencing portions of a site and posting warning signs and through legal means such as deed restrictions, surrounding communities are again left to take steps to "avoid" the remaining risk. Ultimately, they also bear the risk that such controls will fail over time - a risk that some commentators have placed virtually at 100 percent.

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. And relocation may ultimately destroy a community's "social capital" - a vital resource for many community members.

Finally, environmental justice advocates have consistently raised issues about public participation and tribal consultation in environmental decision making. 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 or, in the case of tribes, consultation on a government-to-government basis can be elusive. Among other things, 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.

In addition, 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 Act, and the Bush Administration's aggressive implementation of the Data Quality Act all threaten to curtail the amount of information available to people of color and poor persons and other groups. (For further discussion of these controversial programs, see CPR Perspectives on secrecy and the Data Quality Act.) 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.

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 collectively adopted a set of common principles in 1991. These principles reflect democratic values such as a level playing field in governmental processes, fair access to information and to the use of common resources, protective environmental regulation, and community empowerment and self-determination. 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:

• Meaningful participation by communities and consultation on a government-to-government basis with tribes where environmental justice is an issue, including full and meaningful access to decision making processes concerning the environment, and provision of resources (such as expert assistance) needed to ensure a level playing field;
• Due consideration of the special vulnerabilities and circumstances of tribes and indigenous peoples, communities of color and low-income communities in the assumptions used in the scientific risk assessments underlying environmental standards;
• Preference for risk reduction over risk avoidance where those affected are tribes and indigenous peoples, communities of color, and low-income communities;
• 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 tribes and indigenous peoples, communities of color and low-income communities;
• Targeting inspections and other enforcement actions in communities that host a disproportionate share of polluting facilities; Continued and enhanced disclosure of information to the public concerning environmental risks, government enforcement patterns, government cleanup decisions, and the like.
• Consideration of vulnerable groups, such as the transit-dependant, the elderly and the disabled, in all emergency response plans; And
• Federal agency adherence to the spirit of the executive order on environmental justice, with all agencies designing and executing aggressive strategies to eliminate environmental disparities.