By Daniel Magraw
One of my daughters just returned from a one-week trip sponsored by SmileTrain to provide free medical care to underprivileged Colombians. As expected, many of the patients had cleft palates. Unexpectedly, many of the children had disfiguring and immobilizing burns suffered while working with hydrochloric acid processing cocaine. Some children could not bend their elbows because of scar tissue, others their legs, one child could not close an eye.
Fearing retaliation and even death for engaging in or disclosing illegal activities, the children’s parents had been afraid to take them for treatment at the local medical facilities (SmileTrain facilities were treated as safe havens, with no questions asked and no retaliation).
Indirectly, this deplorable situation results from U.S. and other countries’ drug control policies, because of pressures on the Colombian government to stop drug processing, which made me question what the United States’ responsibility for it is. Some would argue that the connection is too remote, both causally and geographically, but that leaves me uneasy. If our activities or policies lead to a result, don’t we have some responsibility for it?
The same issue arises regarding how we define Environmental Justice (EJ), which is the topic of a December 15th White House Forum on Environmental Justice.
Following closely on the Cancun Conference on Climate Change, the questions also arise, how does EJ apply in the context of climate change and, more specifically, does EJ encompass climate change-related problems created by the United States where the effects are abroad?
CIEL explored the elements of EJ at the 2002 Johannesburg World Summit on Sustainable Development. We concluded that EJ, which is based on international human rights law, has five fundamental principles:
- A disproportionate burden of protecting the environment should not be borne by any particular group, especially not vulnerable populations;
- The benefits of environmental protection, such as clean water, clean air and parks, should be equally available to all;
- There should be transparency and opportunity for meaningful public participation in decision-making;
- Everyone should have access to effective remedies for violations of environmental rights, and laws should be enforced irrespective of the political or economic power of wrongdoers; and
- A level of environmental protection adequate to sustain human health and well-being and ecosystem equilibrium should be achieved and maintained.
Will the White House conference participants be sufficiently bold to embrace this full concept?
I have been concerned for many years that the definition of EJ used at the U.S. Environmental Protection Agency (EPA) is too narrow. It reads:
Environmental Justice is 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. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.
The first sentence sounds like an appropriate starting point, though it should be expanded to include gender and religion (which have been the basis for environmental injustice, at least abroad).
Moreover, the first sentence’s promise is severely limited by the rest of the definition.
It is immediately apparent from the definition’s second sentence, for example, that EPA’s concern about EJ stops at our borders. This is deeply problematic. President Clinton’s 1994 Executive Order on EJ has a slightly wider geographic scope, applying also to U.S. territories and possessions, Puerto Rico, and the Mariana Islands. That is only marginally better and doesn’t address the underlying problem.
Given the human rights and ethical bases of EJ, the United States must be concerned about EJ everywhere, particularly where U.S. activities cause the problem. That concern must exist even if U.S. domestic laws might not extend that broadly and the EPA and other parts of the U.S. Government might not have the resources to address injustice at that geographic level. The United States’ concern about EJ thus should extend to environmental injustices caused by climate change, wherever they occur.
Moreover, the United States has, if anything, even stronger EJ obligations with respect to injustices abroad that result from U.S. activities or policies. Transboundary pollution that originates in the United States and flows into Mexico is a straightforward example: if activities in the United States are harming people in Mexico, U.S. concern about EJ should include that.
Climate change induced by activities in the United States is another example. Concerns about Climate Justice must not stop at U.S. borders, particularly when the harms are caused partly or wholly as a result of activities in the United States.
Another unfortunate limitation in EPA’s approach flows from the third sentence, which limits the promise of “fair treatment” to protection from hazards and thus implicitly excludes access to environmental amenities such as clean drinking water, public sanitation, parks and recreation areas, which is required by EJ.
Moreover, this narrow interpretation is reinforced by EPA’s July 2010 EJ Guidelines, which define “fair treatment” as “mean[ing] that no group of people should bear a disproportionate burden of environmental harms and risks . . . .” President Clinton’s 1994 Executive Order on EJ is similarly restricted, addressing only “disproportionately high and adverse human health or environmental effects . . . on minority populations and low-income populations”. Equal access to environmental amenities does not fit within these definitions.
The EPA’s definition also fails because it makes no reference at all to requirements that everyone have access to effective remedies for violations of environmental rights, and that laws be enforced irrespective of the political or economic power of wrongdoers.
Finally, the EPA’s definition suffers because it does not require that the overall environmental conditions be healthy. The definition would be satisfied even if the environment is dangerous to health. Because there is a human right to an environment capable of sustaining human society and the full realization of other human rights — often referred to as a right to a healthy environment — and because climate change is threatening people and the environment around the world, this requirement is essential.
It is thus critically important that the White House conference embrace a concept of EJ that protects and achieves all of the five principles described above, rather than the unduly narrow version applied by EPA. The conference should also address EJ in the context of climate change, so that Climate Justice can become an officially identified goal and, eventually, a reality.