The current attention within the environmental law bar to environmental justice affords real opportunities to make progress on justice issues across multiple environmental arenas. No doubt, numerous factors explain the growing interest in this issue, including the Biden administration’s commitment to environmental justice, as well as demands from the greater public to address glaring equity issues across the country.
The federal government defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The breadth of the issues facing environmental justice communities, however, requires environmental lawyers to unpack this definition of environmental justice in a way that provides a broad conception of what environmental justice means for communities on the ground. In short, while the terms “environmental,” “justice,” and “community” may seem self-explanatory at first blush, each has layers of complexity that are important for environmental lawyers to consider.
As environmental lawyers, we often associate the term “environmental” with the federal environmental statutes: the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act, and others. Yet, the term “environmental” means much more. We all have different associations with the environment around us, based on where and how we live. To some, “environmental” denotes things that are outside, including national parks and vistas, recreational opportunities, and wildlife. Yet, to others, “environmental” denotes things that are inside, including lack of air conditioning, lead paint contamination, and sewage backups. To those who orient the term “environmental” around pollution, there are still multiple vantage points. In the electricity generation context alone, pollution can come from the mining of fossil fuels, the burning of fossil fuels, or the disposal of fossil fuel combustion waste byproducts—all of which have different concerns. The term “environmental” also increasingly includes arenas that are systems oriented. As such, “environmental” to some includes food systems that relate to healthy soil, nutrition, and pesticides. To others, “environmental” includes energy systems that relate to energy efficiency, renewable energy, and electricity rates. Still to others, “environmental” includes transportation systems that relate to traffic, safety, and noise.
As environmental lawyers, we also often think of the term “justice” as encompassing two separate but related concepts: distributive justice and procedural justice. Indeed, the federal government’s definition of environmental justice includes both “fair treatment” and “meaningful involvement.” Fairness in the environmental context means that the benefits of a healthy environment should be available to everyone, and that the burdens of pollution should not be borne by sensitive populations or communities that already are experiencing pollution’s adverse effects. That is, justice is not only about the disproportionate burden of how society distributes the environmental “bad” (e.g., pollution and high costs of energy/water), but also about the inequities that exist in access to the environmental “good” (e.g., renewable energy and green space). The idea of meaningful involvement in the environmental context means that there should be equal concern and respect in the decision-making process about how benefits and burdens are to be distributed. It is about whose voices are heard by government and corporate decision-makers.
However, two other notions of justice are also relevant in the environmental context and often overlooked by environmental lawyers: reparative justice and transformative justice. Reparative justice encompasses many aspects of remedying past environmental harms, for example, in scenarios involving abandoned mines, cleanup of toxic waste sites, and impacts of redlining. Reparative justice includes broad concepts of restorative process, compensation, and reparations. Transformative justice focuses on the larger social structures that cause environmental injustice and how to remove or alter them. Transformative justice seeks to rely on community members to address and prevent harm, rather than relying on the government to do so. In the environmental context, transformative justice work may involve community control of land; community capacity-building to participate in environmental decision-making; and diversity, equity, and inclusion initiatives in the environmental law field.
As environmental lawyers, we tend to refer to environmental justice “communities” as if a community is a monolithic and static concept. More accurately, however, “communities” are multidimensional and ever-changing. We as individuals often belong to multiple communities and can change our perceptions of belonging to a certain community over time. I, for example, might belong to a neighborhood community in a specific city, but I also belong to a state-level community, regional-level community, and if measuring around the globe, an American community. In addition, I may belong to multiple communities based on race, class, gender, or any number of other identities. The interconnected nature of such identities can also create overlapping and interdependent systems of discrimination and disadvantage—commonly referred to as intersectionality.
Moreover, more than one community may be impacted by an environmental decision, and the various impacted communities may not always experience the same type or level of impact. For example, as environmental lawyers, we tend to think of the communities that are most impacted by a polluting facility as those that are geographically closest to the facility, like a facility located near or in a residential neighborhood. Yet, the same facility may also have a very tall smokestack that disperses its pollution many hundreds of miles away, such that the most impacted communities are geographically very far from the polluting facility. The number and variety of impacted communities is even harder to define in the context of large systems like transportation or electricity delivery.
It behooves environmental lawyers interested in environmental justice to develop a sense of the terms “environmental,” “justice,” and “community.” These terms are rooted not only in law, but also in a variety of other disciplines of the hard sciences and social sciences. Progress on environmental justice (and injustice) will require deep attention by all environmental lawyers. Take the time to learn by listening, reading, thinking, and engaging.
