The Environmental Forum: When the System Fosters Racial Injustice

Originally published by the Environmental Law Institute’s “The Environmental Forum” May-June 2021 issue. This is an excerpt.

By the time the environmental justice movement began taking shape in the 1980s, communities of color had already been suffering from the disproportionate burdens of pollution for decades. Since then, evidence of racially discriminatory patterns in the distribution of environmental harms has only continued to mount.

Researchers from the universities of Michigan and Montana empirically documented in a pair of 2015 studies the phenomenon of “sacrifice zones,” finding that industrial facilities associated with high levels of pollution are disproportionately sited in low-income communities and communities of color.

A 2019 study published in the Proceedings of the National Academies of Science found that while White people in the United States are disproportionately responsible for particulate matter pollution — which is linked to heart disease, permanent lung damage, and premature death — Black people and Latinos endure significantly greater exposure to this pollution.

But even as environmental justice has grown in prominence, early policy responses in its support have been lackluster, undermined by tepid commitment from political leaders, inadequate resources, and feeble accountability measures. Executive Order 12898, which was first issued in 1994, directs that “each federal agency shall make achieving environmental justice part of its mission,” but compliance has largely remained an afterthought. In 2018, a federal court held EPA in violation of Title VI of the 1964 Civil Rights Act for persistently failing to address communities’ environ- mental justice complaints for more than a decade. In 2019, the Government Accountability Office found a systematic failure by key federal agencies to fulfill their responsibilities under the directive. So it is unsurprising that among President Biden’s first acts in office was an executive order that includes some promising updates and reforms to EO 12898. An early mark of his administration will be how well those reforms are implemented on the ground.

The unjust events of the past year may bring long overdue change. In the wake of George Floyd’s violent alleged killing at the hands of a Minneapolis police officer and the waves of protests it spurred in cities across the country, many White Americans are now grappling with the racial demons that haunt our nation. Many who have never been the victims of racial discrimination are now starting to recognize the patterns of disparate impacts that can result from our existing institutions and other underlying structural forces.

These results can occur even if those institutions and structures were not designed with racially discriminatory intent. It’s time for policymakers, advocates, and the legal profession to act.

Several systemic causes contribute to race-based disparities in environmental and public health harms. One of these causes results from the role of the regulatory system in implementing and enforcing environmental policies. Even though absent of racist intent, certain institutions and procedures within the regulatory system produce discriminatory effects. This article focuses on three such features: cost-benefit analysis; the erosion of the precautionary principle; and “information injustice,” which I’ll define later. Ultimately, advancing environmental justice requires equity-informed reforms to relevant institutions and procedures.

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