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October 01, 2003

Introduction: Forward With Environmental Justice

by Nicholas Targ

The environmental justice movement has been called the combination of two of the greatest movements of the twentieth century, namely the civil rights movement and the environmental movement. Environmental justice stands for the proposition that all people have the right to clean air, clean water, and clean land, and that those potentially affected by environmental decisions should have a meaningful say in the process, regardless of race, income, or ethnicity.

Although environmental justice has gained greater prominence in recent years, the issue has been part of American jurisprudence for decades. The following cases illustrate the breadth of the movement's history in the United States:

  • Buchanan v. Warley, 245 U.S. 60 (1917) (declaring race-based zoning unconstitutional);
  • Shelly v. Kramer, 334 U.S. 1 (1948) (finding race-based restrictive covenants unenforceable);
  • Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971), aff'd on reh'g, 461 F.2d 1171 (5th Cir. 1972) (finding discrimination based on municipal amenities unconstitutional); and
  • In the Matter of American Marine Rail, LLC, 2000 N.Y. Env. LEXIS 63 (Aug. 25, 2000) (remanding a waste transfer station permit for consideration of environmental justice issues, among other reasons).

Numerous cases involving the unique rights of American Indians and Alaska Natives, as discussed in Dean B. Suagee's article in this special issue on environmental justice, have pertinence, too, and add an important dimension to the topic.

Today, more than thirty states have environmental justice legislation, policies, executive orders, or similar official commitments, according to a recent fifty-state survey conducted through a partnership between the American Bar Association's (ABA) Section of Individual Rights and Responsibilities (IRR) and the University of California's Hastings College of Law.

Yet environmental injustices continue to burden communities both in the United States and abroad. As Professors Gauna and Foster discuss in the lead article of this issue, people of color and tribal and low-income communities are subject to disproportionate risks from pollution-generating facilities. Moreover, these disparities persist-and new ones threaten-at a time when recent Court limitations on private rights of action narrow potential redress through the Civil Rights Act of 1964.

New, innovative, and promising methods of addressing environmental justice have begun to emerge. Whether through legislation; government-led enforcement actions; citizen suits under environmental laws; or proactive, collaborative problem-solving efforts, these new approaches point to productive paths of engagement.

At the start of the twenty-first century, attorneys continue to hold a vital position of responsibility in the environmental justice movement. In August 1993, the ABA took a significant step by adopting the ABA Environmental Justice Policy. This policy recognizes the critical importance of environmental justice and urges action to address the issue by attorneys, law schools, and government entities at all levels. We are grateful for the leadership, foresight, and commitment of Dennis Archer, now president of the ABA, who played an instrumental role in the policy's adoption.

The Environmental Justice Committee of IRR developed this edition of Human Rights magazine to provide information for attorneys confronting environmental justice issues, whether their clients are communities, corporations, governments, or indigenous peoples. By understanding the issue from a variety of perspectives, attorneys can better address the complex social, health, economic, environmental, and legal issues collectively known as environmental justice. We invite your participation in the work of IR&R and the Committee on Environmental Justice.