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Aboriginal Policy Research Consortium International (APRCi)
2000
A Taxonomy of Environmental Justice
Robert R. Kuehn
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Part of the Environmental Law Commons
Citation of this paper:
Kuehn, Robert R., "A Taxonomy of Environmental Justice" (2000).Aboriginal Policy Research Consortium International (APRCi). 307.
https://ir.lib.uwo.ca/aprci/307
THE UNIVERSITY OF
ALABAMA
SCHOOL OF LAW
A Taxonomy of Environmental Justice
Robert R. Kuehn
Environmental Law Reporter
Vol. 30, p. 10681, 2000
This paper can be downloaded without charge from the Social
Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract=
Copyright © 2000 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®—The Environmental Law Reporter®. All rights reserved.
9-2000 ELR 30 ELR 10681
NEWS&ANALYSIS
ARTICLES
ATaxonomy of Environmental Justice
by Robert R. Kuehn
Table of Contents injustices, environmental justice is an amorphous term
Shifting Perspectives and Uses of Terms .....10682 thatwronglysuggestsracial-basedorclass-basedanimus
Environmental Justice as Distributive or, at the very least, indifference to the public health and
Justice .............................10683 welfareofdistressedcommunities.Thecompanymaybe-
The Meaning and Relevance of “Distributive lieve it did not even create, or at most only plays a small
Justice” ..........................10683 roleincausingorsolving,thecommunity’sproblems.To
Allegations of Distributive Injustice ........10684 government officials often the target of environmental
Implications of Distributive Injustice........10688 justiceactivists’ire,thetermmayimplythattheyareexe-
Environmental Justice as Procedural cutingtheirresponsibilitiesinabiasedorcallousmanner.
Justice .............................10688 Caught in the middle between local residents and indus-
The Meaning and Relevance of “Procedural try, the call for environmental justice may pressure
Justice” ..........................10688 agencyofficialstomovefromawell-established,techno-
cratic decisionmaking approach to a largely undefined,
Allegations of Procedural Injustice.........10689 populist approach that encompasses issues beyond the
Implications of Procedural Injustice ........10692 comfortable domain of the agency.
Environmental Justice as Corrective Efforts to understand environmental justice are further
Justice .............................10693 complicatedbytheterm’sinternational,national,andlocal
The Meaning and Relevance of “Corrective scope; by its broad definition of the environment—where
Justice” ..........................10693 onelives,works,plays,andgoestoschool;andbyitsbroad
Allegations of Corrective Injustice .........10694 rangeofconcerns—suchaspublichealth,naturalresource
Implications of Corrective Injustice.........10697 conservation,andworkersafetyinbothurbanandruralen-
Environmental Justice as Social Justice ......10698 virons. Disputes at the international level include allega-
The Meaning and Relevance of “Social tions that governments and multinational corporations are
-
Justice” ..........................10698 exploiting indigenous peoples and the impoverished con
Allegations of Social Injustice ............10700 ditions of developing nations. At the national level, al-
-
Implications of Social Injustice............10702 though an overwhelming number of studies show differ
Conclusion............................10703 ences by race and income in exposures to environmental
hazards, debate continues about the strength of that evi-
dence and the appropriate political and legal response to
nvironmental justice” means many things to such disparities. At the local level, many people of color
“Emanypeople.Tolocalcommunitiesfeelingover- andlowerincomecommunitiesbelievethattheyhavenot
burdened by environmental hazards and left out of the been treated fairly regarding the distribution of the envi-
- ronmental benefits and burdens.
decisionmakingprocess,itcapturestheirsenseoftheunfair -
nessofthedevelopment,implementation,andenforcement Over the past decade during which communities, aca
of environmental laws and policies. To regulated entities demics, regulated firms, and government officials have
facing allegations that they have created or contributed to struggled with issues of the relationship of environmental
quality to race and class, the quest to explain the essence of
theproblemsunderlyingenvironmentaljusticedisputeshas
TheauthorisaVisitingProfessorofLawattheUniversityofUtahCollege beenmanifestedinthevaryingterminologyanddefinitions
of Law. From 1989 to 1999, Professor Kuehn was the director of the used to refer to such disputes. This Article contends that
Tulane Law School Environmental Law Clinic. He assisted in preparing
the Title VI complaints filed in the Shintech (Convent, La.), Natural Re- such efforts have largely failed to capture the essence and
sources Recovery, Inc. (Alsen, La.), Industrial Pipe (Oakville, La.), and -
breadth of the different types of environmental justice con
SupplementalFuelsInc.(Carville/St.Gabriel,La.)casesreferencedinthis cerns alleged at the international, national, and local levels.
Article. The author would like to thank University of Michigan Law TheArticle instead proposes a four-part categorization
SchoolstudentsBrianGruberandDustinPickensfortheirresearchassis- of environmentaljusticeissues: (1) distributive justice;
tance,theUniversityofMichiganLawSchoolforsupportingtheresearch (2) procedural justice; (3) corrective justice; and (4) social
onwhichthisArticleisbased,andLukeCole,KirstenEngel,PaulMohai,
- justice. Thistaxonomicapproach,whichmovesbeyonddefi-
Rena Steinzor, Dean Suagee, and Elizabeth Teel for their helpful com
ments on an earlier draft. nitions and expands upon the earlier works of Dr. Robert
30 ELR 10682 ENVIRONMENTALLAWREPORTER 9-2000
Copyright © 2000 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®—The Environmental Law Reporter®. All rights reserved.
1
Bullardandothers, offersamethodofcollapsingtheseem
- tutional causes of some environmental injustices. This
ingly broad scope of environmental justice and identifying shift is attributable to a desire to focus on solutions rather
commoncausesofandsolutionstoenvironmentalinjustice. thanmereidentificationofproblems,aswellasadesireto
At its heart, this taxonomy seeks to identify the “justice” encompassclassconcernsandnottobelimitedbyissuesof
embodied in the concept of environmental justice. intentional conduct.
In 1994, President Clinton issued Executive Order No.
Shifting Perspectives and Uses of Terms 12898, “Federal Actions to Address Environmental Justice
inMinorityPopulationsandLow-IncomePopulations,”and
TheU.S.EnvironmentalProtectionAgency(EPA)initially adoptedthephrase“environmentaljustice”toreferto“dis
-
usedtheterm“environmentalequity,”definedastheequita- proportionately high and adverse human health or environ
-
ble distribution of environmental risks across population mentaleffects ...onminoritypopulationsandlow-income
2 6
groups, to refer to the environmental justice phenomenon. populations.” Rather than explicitly defining the phrase,
Because this term implies the redistribution of risk across the ExecutiveOrderelaboratedonitsmeaningbyrequiring
racial and economic groups rather than risk reduction and each federal agency to develop strategies to achieve envi
-
avoidance,itisnolongerusedbyEPA,thoughitisstillused ronmentaljustice by, at a minimum: (1) identifying and ad
-
3
by some states. dressing disproportionately high and adverse human health
In some instances, the phrase “environmental racism,” or environmental effects of agency programs, policies,
defined as “any policy, practice or directive that differen
- and activities on minority populations and low-income
tially affects or disadvantages (whether intended or unin- populations;(2)promotingenforcementofallhealthand
tended) individuals, groups, or communities based on race environmental statutes in areas with minority or low-in-
4
or color,” is used to explain the differential treatment of comepopulations; (3) ensuring greater public participa
-
populations on environmental issues. Commentators dis- tion; (4) improving research and data collection relating
agree over the proper usage of this term, particularly over to the health and environment of minority and low-in-
whether an action having an unequal distributive outcome come populations; and (5) identifying differential pat
-
across racial groups would in itself be a sufficient basis to terns of consumption of natural resources among minor-
labelanactionenvironmentalracismorwhethertheaction 7
ity and low-income populations.
must be the result of intentional racial animus.5 Today, The Executive Order’s use of the term “environmental
manyenvironmentaljustice advocates and scholars avoid justice” is significant in at least three respects. First, the Ex-
the term “environmental racism,” though the phrase con- ecutive Order focuses not only on the disproportionate bur-
tinuestobeemployedandisusefulinidentifyingtheinsti- dens addressed by the term environmental equity, but also
onissuesofenforcementofenvironmentallawsandoppor-
1. ProfessorBullardwasthefirsttoproposeclassifyingenvironmental tunities for public participation. Second, the Executive Or-
justiceconcernsanddefinedthreedifferentequitycategories:proce- deridentifies not just minorities but also low-income popu-
dural, geographic, and social. See Robert D. Bullard, Dumping lations as the groups who have been subject to, and entitled
inDixie116(2ded.1994);RobertD.Bullard,OvercomingRacism
inEnvironmentalDecisionmaking,36Env’t11,12-15(1994).Pro- torelieffrom,unfairorunequaltreatment.Finally,theExec-
fessor Kenneth Manaster later argued that three concepts of justice utive Order, and in particular the accompanying memoran-
supportthephilosophicalfoundationsofenvironmentallaw:distrib- dum,refers to environmental justice as a goal or aspiration
utivejustice,correctivejustice,andproceduraljustice.KennethA.
Manaster,EnvironmentalProtectionandJustice23(1995). to be achieved, rather than as a problem or cause.
Professor Alice Kaswan organized environmental justice into two In 1998, EPA’s Office of Environmental Justice set forth
categories: distributive justice and political justice. Alice Kaswan, theAgency’s“standarddefinition”ofenvironmentaljustice:
Environmental Justice: Bridging the Gap Between Environmental
Lawsand“Justice,”47Am.U.L.Rev.221,230(1997).Professor The fair treatment of people of all races, cultures, in-
DorcetaTaylorobservedthattheenvironmentaljusticemovementis comes,andeducationallevelswithrespecttothedevel-
concernedwithtwokindsofjustice:distributive justice and correc-
tiveorcommutativejustice.DorcetaE.Taylor,TheRiseoftheEnvi- 6. Exec. Order No. 12898, 3 C.F.R. 389 (1994), reprinted in 42
ronmentalJusticeParadigm,43Am.Behav.Sci.508,537(2000). U.S.C. §4321 (1994), Admin. Mat. 45075. The federal govern-
2. See U.S. EPA, Reducing Risk for All Communities, Vol. 1: ment’s Interagency Working Group on Environmental Justice
Workgroup Report to the Administrator 2 (1992). states that a “low-income population” should be identified using
3. See Eileen Gauna, Federal Environmental Citizen Provisions: Ob- theU.S.Census’annualstatisticalpovertythresholdsfromtheU.S.
-
stacles and Incentives on the Road to Environmental Justice,22 BureauofCensus.InteragencyWorkingGrouponEnviron
Ecology L.Q. 1, 27-29 (1995). mental Justice, Guidance for Federal Agencies on Key
-
TermsinExecutiveOrder12,898(1995),reprintedinCoun
4. RobertD.Bullard,EnvironmentalRacismand“Invisible”Commu- cil on Environmental Quality, Executive Office of the
nities,96W. Va. L. Rev. 1037, 1037 (1993-1994); Robert D. President, Environmental Justice: Guidance Under the
Bullard,LevelingthePlayingFieldThroughEnvironmentalJustice, -
NationalEnvironmentalPolicyAct,app.A(1997).TheIn
-
23 Vt. L. Rev. 453, 465 (1999). The phrase “environmental dis -
teragencyWorkingGroupguidancedefines“minority”asanyper
crimination”hasalsobeenusedtorefertothe“disparatetreatmentof -
sonwhoisAmericanIndianorAlaskanNative;AsianorPacificIs
a group or community based on race, class, or some other distin- -
lander; Black; or Hispanic. “Minority populations” are where ei
guishing characteristic” and includes the “process of defending one thertheminoritypopulationoftheaffectedareaexceeds50%orthe
group’s privilege gained at the expense of another.” Bullard, -
minoritypercentageismeaningfullygreaterthantheminoritypop
DumpinginDixie,supranote1,at24-25.ProfessorDorcetaTay- -
ulation in the general population or other appropriate unit of geo
lordefinesenvironmentalracismorenvironmentaldiscriminationas graphic analysis.
“theprocessbywhichenvironmentaldecisions,actions,andpolicies -
result in racial discrimination.” Taylor, supra note 1, at 536. 7. Exec. Order No. 12898, supra note 6, §1-103(a). For a further dis
cussion of the Executive Order and its terms, see the memorandum
5. SeeJillE.Evans,ChallengingtheRacisminEnvironmentalRacism: accompanying the Executive Order and the Interagency Working
Redefining the Concept of Intent,40Ariz. L. Rev. 1219, 1273-77 Group’sguidanceonkeytermsintheExecutiveOrder.Presidential
(1998); Sheila Foster, Race(ial) Matters: The Quest for Environ- MemorandumAccompanyingExecutiveOrder12898,30Weekly
mental Justice,20Ecology L.Q. 721, 733-38 (1993); Gerald Comp. Pres. Doc. 279 (Feb. 11, 1994) (available from the ELR
Torres, Introduction: Understanding Environmental Racism,63U. Document Service, ELR Order No. AD-1134); Interagency
Colo. L. Rev. 839, 839-40 (1992). Working Group on Environmental Justice, supra note 6.
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