We care about environmental justice because it doesn't seem fair that poor communities of color should suffer disproportionate health risks. If we can demonstrate that companies have purposely located polluting facilities in minority neighborhoods, the law provides a remedy. When we can't prove intent, though, it's hard to make charges of environmental racism stick. Unfortunately, there are a great many situations in the United States where African-American, Hispanic, and Native American populations are suffering far greater health and environmental risks than their caucasian counterparts, whether a company intended this or not. These residents live next to riskier facilities (often unwittingly) because the price of land and the cost of housing are lower, or because it is the only place they were granted access. It you were the family involved, it wouldn't make a bit of difference what the company's intentions were, you'd want the situation fixed -- immediately. That's the problem. Many law suits have been filed under the law designed to remedy environmental injustice, but they have mostly failed. Discriminatory intent is hard to prove. A consensus building approach, though, one that doesn't rely on litigation, can produce results even if no discriminatory intent was involved.
Saturday, January 31, 2009
In a study I prepared for the Office of Environmental Justice in the U.S. Environmental Protection Agency with my colleague Gregg Macey (who is now on the law school faculty at Fordham University), we demonstrate that communities suffering environmental injustices (whether purposeful or not) can negotiate "good neighbor agreements" and other remedies. The keys to success are: a well-organized neighborhood group that can document the risks to which they have been exposed; a governmental body of some kind that is willing to listen (even if it doesn't have the power to compel a polluting party to fix the problem) , and the help of a mediator.
A great many environmental advocacy groups reject the notion that there is anything to gain by sitting down with a company they think is poisoning them. They are willing to work hard to mobilize (and gather information that might be used in court), but they are skeptical that a powerful corporation will pay any attention to what they have to say or take corrective action unless forced to do so by the court. I've provided training courses for the leaders of environmental advocacy groups, and I understand their concerns, but Gregg and others have been able to document numerous instances in which negotiation (and mediation) have produced results, even when litigation has failed. The trick is to work with scientific advisors (often from nearby universities) to demonstrate that the community is experiencing serious health risks, whatever their cause. Another colleague, Jason Corburn at the University of California-Berkeley (in his book entitled Street Science) shows how residents in immigrant communities in New York City were able to do this with help from public health experts at Columbia University. A third colleague, Dara O'Rourke has shown, it is quite possible to train residents to gather and analyze "fence line" data showing that pollution problems are coming from nearby industrial facilities.
With plausible data in hand, an organized residents' group can approach local facility managers (or executives at corporate headquarters) about discussing possible changes in operating procedures, organizing continuous monitoring, or helping families that have suffered. By inviting regulators as well as elected officials to host such informal "problem-solving sessions," residents can make it difficult for managers to ignore their requests. And, public officials can host such sessions even if they don't have sufficient grounds to act. They are usually willing to host a session to review the evidence "on its merits." And, if an agreement can be reached voluntarily-- even if it goes beyond the authority of the regulating body -- many agencies are perfectly happy to include the terms and conditions of such agreements as part of revised permits, and enforce them.
Informal conversations of this kind run the risk of deteriorating into shouting matches, so it is often essential that they be mediated by "professional neutrals" acceptable to all sides. By preparing appropriately, especially getting everyone to agree to ground rules, mediators can make the difference between successful and unsuccessful problem-solving. A mediator can also be named in an informal agreement as the person to call when one side feels that the other isn't living up to its promises.
The consensus building approach (CBA) to pursuing environmental justice can work just as well in international settings, when multi-national corporations are involved in mineral extraction or other development activities (whether licensed or not) that are hurting indigenous groups. An organized constituency, with independently gathered evidence in hand, can compel a company to attend a problem-solving session, especially one hosted by a multinational agency and mediated by a credible neutral. CBA doesn't guarantee success, any more than confrontation or litigation do, but it is an option that should be taken seriously.
For more information see Susskind and Macey, Using Dispute Resolution Techniques to Address Environmental Justice Concerns: Case Studies. Prepared by the Consensus Building Institute for the U.S. EPA Office of Environmental Justice, 2003