Environmental Justice is a Civil Right

Co-authored by Gregory Zimmer of The Collins Law Firm, P.C. Shouldn’t it be that living in a pollution-free community is a basic right of American citizenship? Shouldn’t it be that having clean air to breathe and safe water to drink does not depend on whether you are wealthy, or well-educated? It should be, of course, but it’s not. Here is something I’ve learned in 15 years as an environmental lawyer: Rich people don’t have environmental problems; or, if they do, the problems get powerful attention, very quickly. For rich people–with big salaries and houses; graduate degrees; money enough to fund political campaigns; and kids going to private schools–lawyers, elected officials, and government regulators almost reflexively align to come to their aid. But what happens to everyone else? In many of the cases that I and my partners have handled, and in nearly every contaminated community that we have visited, the victims of the contamination are the poor and middle class. Often they are racial minorities. Many bought modest homes near an industrial plant, years ago, believing the proximity was an advantage. Jobs were available. They could walk to work. Maybe even go home for lunch. The plant would sponsor their sons’ and daughters’ little league’s teams. A factory humming with activity and fat with profit would shoulder a big chunk of the community’s property tax burden, keeping the burden reasonable for the family-homeowners. But, these seeming advantages came at a secret price: the company’s reckless dumping of toxic chemicals out the back door, or belching of chemicals out of a smokestack, put directly in harm’s way the very folks who had made the company work, and, indeed, made the community work. The chemicals wound up in the community’s groundwater–its drinking water supply–and in the air that the families were breathing in their yards and sometimes even inside their homes. Years after the reckless chemical disposal occurred, and the company closed its doors, maybe even going bankrupt, the families were trapped in their contaminated and badly-depreciated homes, left to fend for themselves. The Midwest–once the home to busy factories that made things for the entire world–is now pock-marked with communities wracked by decades-old contamination. But sometimes, it works the other way. Sometimes, rather than the families buying homes near (what turned out to be) a polluting factory, the toxic hazards actually followed the families. In and around Los Angeles, for example, studies show that toxic hazards followed minorities, rather than the other way around.¹ The politics of this is as obvious as it is harsh: it’s easier to get a permit to locate an environmentally-dangerous facility near poor minorities than it is to locate it among the upper class. What would be an intolerable threat in a community of the fortunate is, in a neighborhood of the disadvantaged, routine, and something the residents will just have to learn to put up with. They have no power to stop the intrusion into their peace and safety, and the violence to their health. Sometimes, they don’t even mount a protest. They have learned that it will do them no good. Racial minorities truly bear the brunt of this. Disproportionately, they live in aged, dilapidated buildings, or near industrial sites and roadways. They can’t afford to live anywhere safer. So, they are exposed to pollutants like soot, smog, and lead. The US EPA says that African Americans are 79% more likely than white Americans to live in areas where air pollution threatens their health.² One particularly grim statistic: lead poisoning rates among Hispanic and African American children are roughly double those for white American children. Double. And there are 7 states where Asians Americans are more than twice as likely as whites to live in the most polluted areas.² We should be ashamed of statistics like this, stories like this. Clean air and safe water should not be the exclusive privileges of the wealthy, or non-minorities. What can we do to move forcefully in the direction of environmental justice for all? Here are some ideas:

We must put the right to be free from pollution on the same legal footing as the right to be free from discrimination in, for example, schools, jobs, and housing. In other words, just as a landlord cannot refuse to rent to, or a school cannot refuse to admit, or an employer cannot refuse to hire, a minority because she is a minority, neither can a community allow its polluting factories to be sited exclusively, or even mainly, in neighborhoods of poor and minority citizens. And neither can we continue to tolerate unhealthy air and water simply because it affects a community of citizens who–because they are poor or under-educated–do not know how to make their voices heard in order to demand their rightful share of government resources to protect themselves and their children.

If the government is aware of an environmental problem that potentially threatens health, it must notify all affected citizens. This sounds so obvious, and it seems that a law forcing the government to do this should be unnecessary. Does the government really have to be told that it must warn people who the government believes to be in danger? Sadly, yes, it does. In our experience, many of the environmental problems that threaten communities were known to their government years, even decades before anyone alerted those most likely to suffer.

Government regulators–who are charged with protecting against the ravages of pollution both the rich and poor alike–must regularly demonstrate through the issuance of publicly-available reports that they are devoting proportionate resources to protecting the health and property of the poor. If they do not behave this way, those in charge at these regulatory agencies should lose their jobs, and perhaps suffer other consequences as well, if the failure to protect disadvantaged neighborhoods is either deliberate or reckless.

Likewise, government regulators must publicly acknowledge those instances where, due to resource limitations, they are unable to enforce environmental protection laws. Seizing on the scarcity of tax dollars, industry groups lately have become quite adept at convincing lawmakers that they should cut funds for environmental enforcement as a way to balance their budgets. It’s a fairly easy thing to do because those most threatened by pollution cannot afford the lobbyists and access to governmental decision-makers that well-heeled corporate interests can. Also, often the failure to enforce environmental protection laws does not produce an immediate and obvious problem. The consequences of allowing a polluter to do more polluting often do not register for years (even though, when they do, the damage is often severe and irreversible). When the government confesses, “We cannot afford to protect you and your family”, the sheer harshness of this confession may shame decision-makers into devoting more resources to environmental protection. It may also jar affected citizens out of any false sense that they are being protected, and require them to take whatever steps may be available to protect themselves, for example, moving to a different community to escape unsafe air, or buying bottled water or a water filter to escape unsafe water.

1 Pastor, Manuel Jr. – “Racial/Ethnic Inequality in Environmental-Hazard Exposure in Metropolitan Los Angeles” – California Policy Research Center-University of California (2001) – Page viii 2 Pace, David – “Minorities Suffer Most from Industrial Pollution” – Associated Press (December 14, 2005)