Gary Abraham, 1999-2000 NRLI Fellow

with minor amendments, repr. from 10-WINTER/SP NRLI News 1 (2000) (Northwestern School of Law)

The Market for Environmental Justice

In the last quarter of the twentieth century, opposition to commercially lucrative but environmentally risky activities by local communities asked to host them became firmly embedded in American life. However, this phenomenon is still not well understood.

National environmental organizations have not reached out to those "who are geographically close to environmental problems."(1) This is partly because grassroots environmentalism occurs on a local level and is resistant to national mobilization. Grassroots environmentalists form local organizations to pressure government agencies to deny a permit, cleanup contaminated sites more fully than proposed, and stop private companies from harming their community. However, a cultural divide also separates the two kinds of environmentalism. The environmental commitment of the membership of national organizations is diffuse and relatively weak and their action is largely limited to sporadic letter-writing and money contributions.(2) The leadership of the national organizations (and perhaps to a lesser but significant extent the membership) has a cosmopolitan perspective on the "community" that benefits from environmental protection--by which they mean large national regions, the nation as a whole, the planet.

President Clinton's 1994 Executive Order on Environmental Justice, like mainstream environmentalism, looks to a broad national solution to remedy "disproportionately high and adverse human health or environmental effects . . . on minority populations and low-income populations."(3) The race-and-poverty definition of EJ, now a mainstay of agency policy statements and law review articles, is another obstacle to understanding local environmentalism. This concept of EJ leaves out communities that are not wealthy but are not comprised of primarily nonwhite residents or families who fall below the poverty line. These communities also face disproportionate environmental burdens from a concentration of environmentally risky industrial facilities, or from a single large facility providing little or no benefit to the local community. After recognizing the unfairness of their burden, however, they behave no differently than other "EJ communities," a euphemism adopted by EPA to describe populations potentially embraced by the Executive Order on Environmental Justice.(4)

Grassroots environmentalism cannot be understood simply in terms of race and class. Sociologically, local opposition to unfair environmental burdens looks the same regardless of the racial or economic composition of the community. From a policy perspective, if many communities disproportionately burdened by adverse environmental impacts are poor and nonwhite, then helping all disproportionately burdened communities without regard to race and class will help them too.

"Free market environmentalism" recognizes what grassroots environmentalists have been complaining about in their own way for some time--the "institutional failure" of markets to "internalize costs."(5) But markets are not just features of the economy. Much of society's pollution and other environmental risks can be reduced by helping grassroots environmentalists to fight it out in the market of ideas, information and political action. Rectifying dispropotionate impacts everywhere in society (not just among very poor minorities) leads to a "market approach" to environmental protection that will get results faster and more efficiently than reforming environmental law or policy.

Locating disproportionate impacts

The siting of landfills in New York exemplifies the failure of the conventional definition of environmental justice to embrace grassroots equity complaints. Ninety-eight percent of waste commercially landfilled in the state (about 3 million tons per year) goes to the rural western corner of the state. Proposals to expand the six landfills located there and to add at least two new landfills would increase the state's disposal capacity over the permitted lifetimes of these facilities (typically 20 years) from roughly 23 to 68 million tons. (Western New York also hosts 45 percent of the waste disposed at the state's 22 publicly owned landfills.) Moreover, the total waste stream for most rural host counties is less than 100,000 tons per year. In each community citizens groups have organized to oppose the proposals. Indeed, the regional concentration of landfills has itself become part of their rallying cry.

Despite this concentration of waste, the inequitable burden on western New Yorkers is not considered an "environmental justice" problem. All landfill host communities in New York are more than 90 percent white. Some areas have a history of pollution, but others do not. There is poverty in the affected area, but poverty is not uniform and, for some host communities, far from overwhelming. Indeed, in many host communities seasonal residents or people who have migrated from Rochester, Pittsburgh, or Buffalo opting for rural life, and business people and professionals like clergy, educators, and public and private managers represent a significant number of opponents to expanded landfill capacity.

Big Environmentalism and its concept of environmental justice have failed to address most disproportionate environmental impacts, which are not located in poor minority communities. Most communities suffering disparate environmental impacts are working class (not under the poverty line) and white.(6) There is evidence that nationally such communities are disproportionately Hispanic, but there is no correlation between such impacts and black communities.(7)

Many people may argue that the regional concentration of solid waste landfills in New York is due to the low cost of rural land. However, since the cost of bringing a modern landfill on line is on the order of $20 million, land costs are relatively unimportant. A better explanation is that the region has weak voting power in state elections and a depressed tax base, both a consequence of its sparse population and rural character. However, grassroots environmentalism fighting the concentration of waste facilities in the region is not rooted in poverty, even less race, although these are often factors providing grounds for equity demands or complaints. Its hallmark is, rather, rejection of environmentally risky facilities as an unfair burden. One hears this message repeatedly from opponents of such facilities whether or not they are found in paradigmatic "EJ communities."

Grassroots environmentalism and opposition to risky facilities

Grassroots opponents of toxic facilities think differently from mainstream environmentalists. Because they do not share romantic and transcendental ideals for preserving or conserving nature, grassroots opponents of toxic facilities often do not think of  their group as an "environmental organization."(8) These are usually conservative people who have lived in the community for some time, or if not they either like the community they're in or are not able to move out easily. In rural areas they include hunters and small farmers (most meat-eaters), and while they all value the protection of the land few value wilderness, which they consider an urban ideal. Their motivation is not the protection of endangered species but the protection and enjoyment of the place they live. They're not very interested in changing the distribution of wealth. It's their health they're worried about, not their wealth. And they don't trust experts to balance the risks for them.(9)

A grassroots approach to challenging toxic facilities grows out of concern for the still largely unknown risks of exposure to toxic substances that exploded after Love Canal, Bhopal, and Three Mile Island in the late 1970s. Black Americans were no less concerned than were white Americans about toxics in their communities. But in 1982 when the Warren County Citizens Concerned About PCBs formed to fight a proposed hazardous waste landfill in the predominately African-American community of Afton, North Carolina, the group was supported by national civil rights leaders.(10) Although concern about toxics is common to people of all races and classes in America, after Afton the sensitivity to environmental justice in the academic literature and the agencies focused exclusively on race and class. Big Environmentalism then developed an affinity with the EJ concept.

Grassroots opposition as a market approach to environmental protection

Dividing communities concerned about toxic exposure by race and class will not improve the environment, because other communities falling outside the protected categories of race and class will get dumped on. Helping all such communities succeed in stopping unwanted risky facilities will improve the environment, because their success will increase the cost of environmentally risky activities. In the area of waste facility siting the most comprehensive study concludes that "rising prices for waste disposal significantly reduces waste generation."(11) More generally, EPA has stated that because of federal right-to-know laws, "since 1988, when reporting began, total [chemical] releases decreased by almost 43 percent," attributing this to public pressure in response to growing information on toxics.(12)

This suggests an efficient solution to the problem of environmental externalities, achieving both environmental equity and environmental protection, is increased public education about the presence and potential effects of toxics in their communities. This will have the predictable effect of increasing the likelihood of open, fair bargaining over the benefits and burdens of hosting toxic facilities.(13) This is consistent with the message of both grassroots environmentalists and market environmentalists: it's not fair (institutional failure) to make us pay the costs of pollution (externalize costs) allowing distant others to benefit at a steep discount.

Open, fair bargaining would go a long way toward achieving the true cost of production. However, polluters generally make every effort to avoid an open discussion of true costs. Environmental law facilitates these efforts by placing a nearly impossible burden of proof on those with reasonable fear of environment risk,(14) and by preempting local responsibility for health, welfare and safety.(15) When those advantages are unavailable, polluters use their legal and economic power to litigate resource-poor communities into submission for a host community "agreement."(16)

Lacking such advantages, environmentally burdened communities are turning to the political arena and its court of public opinion, where the playing field is more level. They are being greatly helped by new access to information with which to make their case. Toxic Release Inventory (TRI) data reported by chemical processors under the Emergency Planning and Community Right-to-Know Act (EPCRA) Section 313 and chemical accident and risk management plan data reported by chemical facilities that manufacture, use, or store more than threshold amounts of any of approximately 135 listed hazardous chemicals under Section 112(r) of the Clean Air Act made available on the Internet by EPA draws 1.4 million hits and 800,000 user sessions per month.(17) On the basis of a reasonable assessment of potential burdens, including weighing risks from the unknown as well as the known, grassroots environmentalists are pressuring owners and operators of such facilities to cease externalizing the environmental risks they produce, at least to the extent they were doing, and thus force the "market" to reflect something closer to the true costs of production.(18)

However, the 644 chemicals currently on the TRI are still a small fraction of the over 60,000 man-made chemicals discharged in various ways into the environment.(19) Most of these have never been studied for their potentially toxic effects. Releases of landfill leachate escape reporting altogether, since toxics disposed of in a landfill have presumably already been reported.(20) This leaves much room for reasonable people to disagree about what level of risk of toxic exposure is acceptable. This, in turn, ought to diminish the authority of experts who must operate in the absence of basic knowledge about quantities and effects of exposure to toxics. 

Were they able to more fairly bargain, potential host communities could demand and get much higher levels of environmental monitoring, financial assurance, mitigation, pollution reduction, local involvement in risk management--and more would accept hazardous facilities. Many would continue to reject such facilities, but their rejection would (as to some extent it does now) increase the willingness of facility operators to pay more for local acquiescence. These added costs should be passed on to those who benefit from toxic facilities--ultimately, to actual consumers where the burden is borne more equitably.

However, open bargaining and shifting the burden to precaution will not occur unless grassroots environmentalists and local governments have resources for participation comparable to those of toxic facility proponents. When that happens, we will be closer to a free market society in the fullest sense.

NOTES

1. Ora Fred Harris, Jr., Environmental Justice: The Path to a Remedy That Hits the Mark, 21 U. Ark. Little Rock L. Rev. 797, 807 (1999). Harris, however, limits his discussion to disproportionate environmental burdens on minority and low-income communities.

2. See Ronald G. Shaiko, Voices and Echoes for the Environment: Public Interest Representation in 1990s and Beyond (1999) (analyzing the connection between mainstream environmental organizations and their membership).

3. Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12,989, 59 Fed. Reg. 7629, 1-101 (1994) (emphases added).

4. See, e.g., Cynthia Dougherty, Director, USEPA Office of Ground Water and Drinking Water, Environmental Justice Stakeholder Meeting (Wash., D.C., March 12, 1998) <http://www.epa.gov/ogwdw000/ndwac/sum_ej-b.html>.

5. James L. Huffman, Free Market Environmentalism and Fairness, in Environmental Justice and Market Mechanisms 277, 284 (Bosselman & Richardson, eds. 1999).

6. Compare Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 Ecology L.Q. 619, 640 (1992) ("grassroots environmentalists are largely, though not entirely, poor or working class people; many are people of color").

7. See Vicki Been, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Environmental Justice Claims, 24 Ecology L.Q. 1 (1997). See also Huffman, Free Market Environmentalism and Fairness, supra note 3, at 283 (noting that disproportionate siting of industrial polluters in low-income neighborhoods "is a function of the cost of land as a factor for both industry and providers of [cheap] housing"). While this shows that environmental unfairness is race-neutral, the problem of unfairness remains.

8. Regina Austin and Michael Schill, Black, Brown, Poor & Poisoned: Minority Grassroots Environmentalism and the Quest for Eco-Justice, 1 Kan.J.L. & Public Pol. 69, 72 (1991). An elderly couple from Texas at a meeting of landfill activists last Spring in Baltimore told me they denied they were environmentalists to increase their effectiveness in the local community. A similar distance from environmentalism has been maintained by a citizens group in western New York about which I have written. See Gary A. Abraham, Concepts of Community in Environmental Disputes: Farmersville and Western New York's Garbage War, 6 Buffalo Envtl. L.J. forthcoming, text at notes 66-68 (1999).

9. For further discussion of this point see Gary A. Abraham, Fanning the Flames of NIMBY, 6 Buffalo Envtl. L.J. 115 (1998).

10. Robert D. Bullard, Dumping in Dixie: Race, Class and Environmental Quality 37 (1990).

11. Michael B. Gerrard, Whose Backyard, Whose Risk: Fear and Fairness in Toxic and Nuclear Waste Siting 69 (1994). Gerrard's book is one of the few treatments to address environmental inequities beyond race and class.

12. EPA Releases Most Recent Community Right-to-Know Data on Toxic Releases, press release of May 13, 1999, available at <http://www.epa.gov/epahome/press.htm>.

13. Gerrard, Whose Backyard, Whose Risk, 125-139 (discussing ways of achieving host community consent).

14. See National Academy of Sciences, Institute of Medicine, Toward Environmental Justice: Research, Education, and Health Policy Needs 63-64 (1999) (available at <http://www.nap.edu>) (recommending "a more equitable sharing of the burden of proof" in environmental decision making in view of "the inherent difficulty of linking environmental hazards to adverse health outcomes"). See also Theo Colborn et al., Our Stolen Future 219 (1997) (recommending the same and noting "the current approach, a presumption of innocence [for synthetic chemicals], has time and again made people sick and damaged ecosystems").

15. Gerrard, Whose Backyard, Whose Risk, 120, 142 (discussing "the widespread practice of trying to preempt local control and force disposal facilities on unwilling communities" and noting "very few states leave facility siting decisions entirely in the hands of localities").

16. Were a challenge to a local law banning landfills to go to trial in New York it should fail, since there is no preemption and a local ban discriminates even-handedly between in-state and out-of-state commerce. N.Y. Environ. Conservation L. 27-0711; Gary D. Peake Excavating, Inc. v. Town Board of Hancock, 93 F.3d 68 (2nd Cir. 1996). Despite this, litigation to secure a host community agreement is widespread in western New York. See <http://concernedcitizens.homestead.com/localmap.html> (collecting stories).

17. Oregonian, Jan. 14, 2000, <http://www.oregonlive.com/news/00/01/st011415.html/> (including web links). For a list of toxics reporting web sites see USEPA, Office of Solid Waste and Emergency Response, Chemicals in Your Community, EPA 550-K-99-011 (December, 1999), p. 11 <http://www.epa.gov/ceppo/pubs/chem-in-comm.pdf> However, last summer Congress suspended public access to Section 112(r)'s requirement to submit off-site consequence analysis for massive "worst-case release" accidents until June 21, 2000. Pub.L.No. 106-40 3, 113 Stat. 207, 209 (Aug. 5, 1999).

18. Cf. Peter L. Gray, Environmental Data on the Internet: A Wired Public Setting Environmental Policy, 30 Evtl. L. Rep. 10122 (Feb., 2000) (criticizing "EPA's public pressure paradigm"); Gary A. Abraham, President Clinton's Executive Order on Environmental Justice, 5 Buff. Envt'l. L.J. 79, 98-99 (1997) (arguing that expanded agency outreach and opportunities for public participation under the Executive Order and to right-to-know laws will achieve environmental justice goals sooner than new legislation and litigation).

19. Cf. John C. Dernbach, Pollution Control and Sustainable Industry, 12-FALL Nat. Resources & Env't 101, 102 (1997) (noting only about 1,134 pollutants are regulated as toxic or hazardous under one of five applicable federal statutes and about 800 are regulated only under one).

20. Landfills are "point sources" whose wastewater discharges are subject to effluent limitations for discharges to surface waters under the Clean Water Act, but discharges to groundwater fall outside the new regulations. See65 Fed. Reg. 3008 (Jan. 19, 2000), to be codified at 40 CFR Parts 136 and 445.