This example illustrates two realities about the importance of data in protecting communities of color against environmental hazards: When data is available, it makes for a compelling case that can fuel effective storytelling and advocacy. But when data is not available—or is sitting unexamined in government computers—journalists and advocates are forced to do the government’s job of identifying threats to public health.
In recent decades, the United States has experienced a belated reckoning of the concept of environmental injustice, the concentration of environmental hazards in disadvantaged communities. Outraged activism has been the engine of change. To a great extent, the fuel for that engine has been data. Without documentation, claims of environmental injustice are readily dismissed as anecdotes or unfounded suspicions.
But while the movement for environmental justice is on the ascent, the movement to make government data accessible to the public is faltering.
Advocacy organizations dedicated to government transparency, including the Sunlight Foundation and the National Freedom of Information Coalition, have shut their doors or downsized to the point of dormancy in recent years as donor support dried up. State-level press associations, the longtime guardians of access to government records, have been hollowed out by budget cuts as their member newspapers shrink or disappear. As a result, the public’s right of access to information is increasingly fragile. Difficulty obtaining information from the government on a timely, affordable basis is an unseen environmental justice issue with a profound impact on citizens’ ability to effectively advocate for themselves.
The Power of Data in Environmental Advocacy
The public plays a uniquely participatory role in enforcing environmental laws—indirectly, by way of pressure on elected officials, and directly, by bringing lawsuits. Both types of citizen involvement rely on access to information—documenting where hazards exist and what it would take to remediate them. Informed public participation throughout the decision-making process has value both for regulators (in making better-informed decisions) and for the citizenry (in feeling a sense of inclusion).
Environmental organizations use data obtained from government regulators in a multitude of ways: to backstop government regulators in checking to make sure industries are complying with their permits; to influence the development of legislation; to support lawsuits against polluters; and to publicize industry failings, which can have a shaming effect that compels industries to improve their practices (or compels regulators to enforce the law more vigorously). Public access to information held by the government is especially important in the realm of environmental regulation as an independent check on the well-documented phenomenon of “agency capture,” by which industries develop a cozy relationship with regulators.
Environmental Enforcement Through Transparency
The modern environmental regulatory movement began in 1969 with the enactment of the National Environmental Policy Act (NEPA), which requires federal agencies to take account of the impact of decisions that could detrimentally affect natural resources, such as siting federal highways, and to show that less-harmful alternatives were considered. NEPA requires agencies to publish assessments of the consequences of federal construction projects, including creating a baseline of information about the condition of the affected property and how the federal project is expected to change it. These “environmental impact statements” are recognized as a vehicle for better-informed public input.
Environmental statutes contemplate a rare degree of direct public involvement as primary enforcers, empowering adversely affected citizens to bring lawsuits that complement regulators’ enforcement efforts. By assigning this responsibility to the citizenry, the law recognizes that agencies such as the EPA have limited resources to take polluters to court, so the public must pursue the cases that regulators cannot.
Publicity and advocacy are especially essential in improving conditions in environmental “sacrifice zones” because the existing framework of judicial and regulatory remedies is widely recognized as ineffective. In 2015, reporters with the nonprofit Center for Public Integrity looked into the EPA’s record of civil rights enforcement and concluded that the process was “broken.” They found that complaints were dismissed 95 percent of the time, and even when cases were taken seriously, they “languished” for years with no visible progress. Because legal remedies are so ineffective, reformers have necessarily prioritized “self-help” by way of organizing, protest, and publicity.
The “Right to Know”—and its Limits
The federal government, along with every U.S. state and territory, has a statute entitling the public to inspect records that memorialize how government business is conducted. Freedom-of-information laws all start with the same principle: that transparency will make government decisions better, both in appearance (by promoting public confidence) and in substance (by affording the agency the benefit of informed citizen input).
The Freedom of Information Act (FOIA) presumes that records created or maintained by federal executive branch agencies are open to public inspection, with exceptions for records deemed especially sensitive. As the U.S. Supreme Court stated in a 1978 ruling, the primary purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”
FOIA laws also have well-documented shortcomings: They are filled with easily exploited loopholes, and enforcement is notoriously slow and costly. In a pessimistic appraisal of state transparency released in 2015, the nonprofit Center for Public Integrity gave only three states a rating of higher than a D-plus. The center’s report concluded: “While every state in the nation has open records and meetings laws, they’re typically shot through with holes and exemptions and usually have essentially no enforcement mechanisms, beyond the court system, when agencies refuse to comply.”
Corporate lobbyists have advocated successfully in dozens of states for “audit privilege” statutes that enable them to conceal records of potential hazards they discover themselves, which companies justify on the grounds that secrecy will incentivize candid communications. These types of special-interest exemptions contribute to an unequal playing field between citizens and industry, with only one side fully informed about what types of substances are being handled, how, and with what consequence.
More and more categories of records disappear from public view each year, often at the behest of special interests that prefer to avoid scrutiny. Even Florida, renowned for having one of the nation’s strongest open government regimes, exempts more than 1,000 types of documents from its Public Records Act. A great many exemptions are designed to keep information about businesses’ interactions with regulators secret. In a much-criticized 2019 FOIA interpretation, Food Marketing Institute v. Argus Leader Media, the Supreme Court decided that grocers’ interests in protecting their “trade secrets” overrides the public’s interest in knowing how much money retailers are making off the federal food-stamp program. Because the Argus Leader decision lowers the threshold for information to qualify as a “trade secret,” it is likely to become even harder to obtain records about the chemicals and processes that federally regulated industries are using.
The “Make-Your-Own Data” Workaround
The failure of the legal system to require regulators to create databases that answer essential environmental questions can leave the public in the dark. For this reason, advocates and journalists frequently find themselves doing the data-gathering work that government regulators should be doing themselves.
In 2022, Florida’s Tampa Bay Times was awarded a Pulitzer Prize for a multipart series, “Poisoned,” looking at how a local lead smelting plant had sickened generations of workers and discharged toxins into the community. The editor of the Times explained that his three-reporter team “did work regulators should have done in Tampa years ago”—even taking courses to become certified lead inspectors so they could credibly test the air and water surrounding the Gopher Resource plant. As a result, regulators directed Gopher Resource to upgrade the plant’s ventilation system and fined the operators more than $500,000.
In 2021, a team of reporters from ProPublica tested air quality around South Florida sugar cane fields and found high levels of particulate matter, which is linked to adverse health consequences, during times when the sugar industry was burning fields as part of the harvesting process. In addition to running their own tests, the reporting team equipped local residents with air-monitoring sensors, tapping into the lived experience of the people most affected. Reporters also examined hospital admission data and discovered that emergency room visits for respiratory problems “spiked” in correlation with periods of sugar cane burning. Not surprisingly, the adversely affected neighborhoods were in the lower-income section of Palm Beach County, which is majority Black and Latino.
Conclusion
The story of the environmental justice movement is a story about the accessibility of data. Indeed, the failure to make information accessible to afflicted communities has itself been regarded as an environmental justice issue. Citizens who are irate about industrial development in their neighborhoods often find themselves equally irate about being kept uninformed.
When open government laws work properly, they empower journalists, researchers, activists, and everyday citizens to effectively pursue change. Without adequate, well-enforced disclosure laws, industries can leverage their asymmetrical information advantage to fend off opposition.
Even where documents and data are available, they do not always tell a complete story because nothing obligates environmental regulatory agencies to assess the cumulative health risks to a community from multiple sources of exposure to toxins. While strengthening FOIA laws would advance environmental justice, even drastic FOIA reforms will be incomplete without also obligating the government to collect high-value data and maintain it in a usable format.
The “data divide” that denies communities of color complete information that the government knows—or should know—about conditions within their neighborhoods is a foundational environmental justice concern. Because accessibility of information is such a difference-maker both in individualized life choices as well as in effective public policy advocacy, a complete “environmental justice agenda” must contemplate FOIA reform as well.
